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Mediation in Probate Disputes - Better Sooner than Later?

A photo of Noel McNicholas
9th May 2024

Mediation is very suitable for resolving probate disputes and has many advantages over traditional litigation.

What is Mediation?

Mediation is a form of Alternative Dispute Resolution (ADR) where an experienced mediator acts as a neutral third party. The mediator is often a barrister or solicitor with a great deal of experience, so they’re already familiar with typical areas of dispute be that Will validity claims or 1975 Act claims. The mediator’s sole goal is to help the disputing parties work towards a settlement that can bring the dispute to an early end. The mediator realistically is not trying to find a deal that all parties are ‘happy’ with, but rather a deal which they ‘can live with’.

Typically, the parties jointly select a mediator, and the mediator’s fee is usually shared equally between them.

Why Choose Mediation for Probate Disputes?

There are very good reasons to aim for mediation:

- Cost-Effective:

Going to court will be expensive and time-consuming, as well as emotionally fraught. Mediation offers a more cost-effective alternative to running a claim or defence all the way to trial.

- Greater Control:

It allows parties to have more control. Unlike court decisions, which can be unpredictable and very unwelcome, mediation allows for direct negotiation. At trial, the parties are primarily in the hands of the judge, experts and lawyers.

- Preserving Relationships:

Maintaining family relationships is crucial and sadly, it could even be too late for that. But mediation fosters communication and can help prevent further strain and perhaps repair bridges.

- Confidentiality:

Mediation discussions are entirely confidential (in other words “without prejudice”). This means any admissions made at a failed mediation cannot be later used in court.

- Encouraged by Courts:

Courts often encourage/demand parties to attempt ADR before proceeding or during litigation. Declining mediation may very well lead to substantial costs and penalties, even for the winning party.

How Does Mediation Work?

The parties meet with the mediator separately, usually for a day-long session. This can be done remotely, saving parties the time and trouble of getting to and spending a day at their lawyer’s office. The mediator facilitates discussions throughout the day going back and forth, tries to identify common ground, and helps parties explore potential solutions they can live with. If a deal is reached, a settlement agreement or confidential Order (if proceedings are on foot) will then be drawn up which binds the parties. This will also be filed with the Court in cases where litigation has commenced. There’s no guarantee it will always work but most mediations result in settlements, either on the day or shortly afterwards.

Are Mediations Mandatory?

Almost, yes. If a party unreasonably refuses mediation and the matter goes to court, the court will almost certainly penalise that party on legal costs. For a very up-to-date reminder following judgement on 1 May 2024, in Northamber PLC v Genee World Ltd & Ors [2024] EWCA Civ 428 the Court of Appeal restated crucial aspects regarding a party's refusal to engage in mediation. Not responding to an offer for mediation can influence the determination of costs awarded, let alone refusing to mediate. The Court said “[the second and third defendants] were silent in the face of an offer to mediate. That was in itself unreasonable. To compound matters, they breached an order of the court requiring them to explain their failure to agree to mediation. If breaches of such orders are ignored by courts when deciding costs, parties will have no incentive to comply with them. That would undermine the purpose of making them, which is robust to encourage parties to mediate.”

When is the Best Time to Mediate?

In the author’s view, as soon as possible and ideally, even before proceedings have commenced provided all the relevant material is available to all sides. If the mediation is left too late, substantial costs will likely have arisen and the dispute might take on a very distinctive flavour of becoming a costs-driven matter because of the scale of the costs already incurred, rather than concentrating on the main contentions of the original dispute. Of course, sometimes it won’t be possible to mediate - at least until a later point and after litigation was commenced - when all the relevant material which might tip the case one way or another is finally available to all sides. But often, all the relevant material is available much earlier, to the point all sides were aware of the strengths and weaknesses of their position. If that happens, why not get into mediation if an impasse has developed? If the Court will order mediation at some point later down the line as part of its case management powers, it seems sensible to explore it sooner rather than later.

In summary, mediation offers a more collaborative and flexible approach to resolving probate disputes, emphasising communication, cost-effectiveness, and preserving relationships. If you’re involved in a probate dispute, consider exploring mediation as your first, not one of your last options.

This blog was written by Noel McNicholas, Associate Solicitor based in our Leamington Spa office. If you have any questions concerning a probate claim, please contact Noel on 01926 887700 or