Probate, Will and Trust Dispute Mediation

Mediation how can it help you?

Mediation is a quick and effective method of resolving probate, contested wills and inheritance disputes. Usually family members are still in the grieving process and Court proceedings can cause long lasting family rifts between family members. Mediation offers a different route to resolving these family disputes. Mediation us a much softer approach than traditional solicitor letters and court litigation. This latter approach tends to fix parties positions and damages relationships. Mediation allows parties to talk about their grievances whilst maintaining family relationships. Mediation is a much quicker and easier process to achieving a settlement.

There is a growing trend towards will disputes being settled by mediation compared to litigation. In part this is due to the increase in value of Estates. The stock market, higher incomes and pensions, greater ability to save, the greater ownership of property and increased property values.

Many of the claims being brought are for; an entitlement or greater entitlement from the estate; claims by family members or family members dissatisfied with their current entitlement whether a will exists or does not exist.

Commons areas of probate, will and trust disputes

  • Claims under the inheritance (provision for Family and Dependents Act 1975).
  • There is a dispute over who should inherit what.
  • Allegations regarding mental capacity.
  • Allegations of undue influence and fraud in inter vivios and testamentary disposition.
  • Disputed powers of attorney.
  • Allegations of invalid procedure or fraud.
  • Negligent drafting of wills.
  • Disputes as to the validity of alternative wills or codicils.
  • The will has not properly stipulated the division of assets.

What do mediators do?

Mediators help parties in a dispute to communicate about the issues of concern to them and help participants to negotiate and find solutions that are acceptable to everyone involved. At the end of the mediation process, it is hoped the parties can come to a mutually agreed solution. Mediators are neutral and have no interest in the outcome of the dispute and cannot impose an outcome on the parties, unlike a Judge at court.

Mediators will help you to manage your emotions and communicate with the other party. The mediator will help you to make your points calmly, clearly, listen to the other side without interrupting and getting angry. The mediator will help you identify what is important, what is problematic, and what solutions can be explored and agreed. The Mediator will help you if your finding the process stressful.

Do mediators provide legal advice?

Mediators do not give legal advice. The mediator will not suggest possible solutions or advise you on whether any proposed solution is in your interests or not. Should you require legal advice, you should seek independent legal advice. Prior to and during the process. A solicitor can attend mediation with you. The mediator will remain completely impartial.

What are the benefits of mediation?

Mediation is quicker than litigation

Generally, mediation is much quicker than the traditional court route. You book an appointment with a mediator and mediation can take place. With the court route you might have to wait many months for court hearing dates which may be cancelled at short notice, even on the day. This can result in many months of delays, whilst you wait on a new hearing date that all parties can attend. If a court hearing is cancelled, you will be charged a deemed fee by the barrister, and they will charge you again for any further hearings.

Disputes can drag on for a long time before getting to Court. While the dispute rumbles on towards a hearing, you will be expected to commit a huge amount of time, energy, and money to maintain your legal position and prepare for the hearing. So, mediating early can save you huge sums of money.

Mediation is cheaper and quicker. Potentially more estate assets will be retained, instead of being swallowed up with litigation costs.

To avoid court

Mediation gives parties to a dispute an alternative to the traditional expensive and risky route of litigation. Parties enter into negotiations to find an agreement. Anything can be tried/ offered to make a deal or withdrawn if it is not acceptable without endangering a party's formal position.

Why Mediate instead of going to court?

When in mediation, you are in control of the process, and you can reach an agreement based on the interests of the parties. When you go to court to resolve an issue, the Judge will make a judgment based on the law, and the interests of each party may not be considered.

Mediation allows you to stay in control. You have greater control over the decisions you make, unlike the court route, where a Judge decides for you. In mediation you can decide how you want to resolve the dispute. You do not have to accept a proposal if you are not happy with it.

Mediation can help to maintain relationships. Going through Court is very polarising and will put pressure on relationships. Mediation focuses on communication and finding solutions that work for everyone.

Disputes can be resolved by considering the parties interests rather than legal rights.

The mediation process:

  • is confidential.
  • no mediation notes are retained.
  • offers are without prejudice.
  • the outcome is private, unless parties agree otherwise and/or other parties need to be informed so that payments/ actions can be taken such as orders being drawn up.

Probate, Wills and Trust Dispute parties are not committed to a negotiated deal until a written agreement is drawn up by the parties or a Tomlin Order is prepared by the parties Solicitors, and signed by both parties.

Where the Courts feel mediation should been considered and one party unreasonably refuses. The Court might bear this in mind when making a judgment, in relation to costs.

Probate and trust litigation is generally not about justice, but about making sure you get your fair share and not to be disinherited. That said, it is better to negotiate, as this is exactly what your solicitor and barrister will try to do for you. Trying to settle your matter out of Court is in your interest, as it will save you considerable sums of money on letters, telephone calls, meetings, applications, the production of court bundles and instructing the barrister who will represent you in the Court.

Mediation is a very successful method of resolving disputes and offers a cheaper route to justice than the court system.

The litigation route always carries a risk. This may include a Judge that is 'not with you' in the hearing. The Judge may not be interested in the merits of the argument and instead adopts a pragmatic and subjective approach to the case. The Judge might decide the case on grounds that have not even be pleaded by your barrister - Ali v Dinc (2022).

Ali v Dinc (2022)

Contentious probate and trust cases are high risk, because they are fact based. Litigation costs can exceed the value of the claim/ estate. The winner of the trial my not recover all their costs, and the loser may be left in debt.

Is there a right time to mediate?

There is not a wrong time to mediate. Mediation can take place at any time before your case reaches a final hearing.

The best time to mediate is as soon as you can . This will help reduce the amount of time and money spent on the dispute. Before the parties become entrenched in their legal positions and before large sums have been spent on legal expenses.

How long does mediation take?

Both sides may come to an agreement in a couple of hours, or it might take more than a couple of sessions. Most civil mediation meetings are concluded in a day. Compare the length of time a matter will be held in litigation 12-24 months. That is a significant amount of time compared to mediation.

What happens during probate mediation?

When the probate of a deceased relative is disputed by the surviving relatives. The relatives can jointly appoint a mediator to help the parties to resolve their dispute. The parties will work through their problems withe the probate and come to a mutually acceptable agreement about how the probate should continue.

What happens in a contested will mediation?

The mediator will allow the parties to speak freely about their concerns about the will. The parties will be able to talk about what they were promised, their understanding of the wishes of the relative. The mediator will help the parties to communicate and understand the each side's point of view and attempt to to come to a mutually acceptable settlement.

During the course of the day, the probate, will and trust mediation process will provide you with the best possible chance of negotiating a mutually agreed solution. Once agreed, you will both draft and sign a legally binding mediation agreement which sets out the terms of the solution you negotiated together. If your solicitor is in attendance, they will draft the agreement. The mediator is not involved in the drafting of this agreement. This is to ensure complete impartiality.

Do I have to be in the same room as the person I am in mediation with?

You do not have to be in the same room as the other party you are in dispute with. The Mediator will use private rooms to help you resolve your disagreement without direct contact.

Usually, the parties book three rooms. The larger room, both parties usually attend to state their opening statements. Thereafter parties are in smaller separate rooms. If settlement is achieved both parties will attend the larger room for them or their lawyers to draft the agreement.

Who drafts the agreement?

When a settlement is reached. The settlement agreement must be recorded in writing in the agreed terms by the parties themselves. The mediator will play no part in the writing of the settlement agreement or signing of the agreement.

Who signs the agreement?

The settlement agreement must be signed by all the parties and their lawyers, and must state the agreed outcome of the mediation.

What is in the agreement?

The settlement agreement must state the agreed outcome of the mediation. Where legal documents may be required to be drawn up at a later date. It should be clearly stated in the agreement. The settlement agreement will need to clearly mention if  legal documents - draft order, contract, undertaking or other document will need to be drawn up at a later date.

Are mediation agreements legally binding?

In civil and commercial mediation any written agreement is legally binding. However, workplace and community mediation, the agreement is not legally binding, but is made on good faith.

What happens if there is no agreement?

You might have made good progress in the mediation, but you did quite reach a settlement. In this situation it can be helpful to take a break to think things over, then resume mediation in a couple of days.

Who pays for mediation?

Who pays for mediation will depend on the type of dispute. Generally both sides pay an equal share of the mediation fee, room /venue costs, refreshment costs, mediators travels and accomodation costs.

Under Civil Procedure Rules (Pre-Action Protocol), the Courts require parties to have actively engaged in other forms of dispute resolution before preceeding to to issue Court Proceedings. Penalties can be imposed if they win or lose at Court.

When is probate, wills and trust dispute mediation unsuitable?

There are some circumstances when mediation from the outset may not be suitable.

There are:

  • One of both of the parties are not willing to mediate/ negotiate.
  • The dispute may not be capable of being negotiated.
  • There may be extreme conflict and an imbalance of power that the mediator cannot redress.
  • One or both parties feel forced to attend.
  • Mediation has already been fully attempted.
  • When a point of law needs to be decided on by a Court.
  • Where injunctive relief is needed to protect one party.
  • Where either party displays a lack of commitment.
  • Where either party is unable to accept the situation or is unable to negotiate.
  • A party is simply not ready to let go of their position.

Are mediators regulated?

There is no statutory regulation requiring mediators to be regulated. The Civil Mediation Council (CMC) runs a voluntary system of regulation for Civil and Commercial and Workplace mediators. Mediators registered with the CMC abide by a Code of Conduct having been trained to an acceptable industry standard, have suitable insurance, carry out continuing training and development, and offer a complaints process.

Useful information:

The Mediation ProcessAdvantages and Disadvantages of Mediation

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