Mediation – Why it Matters in Contentious Probate Claims

Q: When a fight is looming following the death of a loved one, is it in your best interests to rush off to court?

A: No.

This is not a difficult question to answer.  

Court proceedings are always last resort and the reality is, almost all contentious probate matters (whether that be a Will dispute, a claim under the Inheritance (Provision for Family and Dependants) Act 1975, or a dispute with or between the Executors) will result in either the abandonment of the claim due to a lack of merit or some other form of resolution.  And it is mediation which is usually the path to a resolution which is suggested.  Mediation has become an increasingly popular method for resolving contentious probate claims.   It is also probably right to say this is almost compulsory.  This process involves a neutral third party, the mediator, who facilitates discussions between disputing parties to help them reach a mutually acceptable agreement.   Not an agreement they are happy with, but one they can live with.

Here, we'll explore the pros and cons of using mediation in contentious probate claims.

1. Mediation is generally far less expensive than litigation. Court cases will be prolonged and costly, with substantial legal fees accumulating over time.   
2. Mediation, on the other hand, can be completed in a much shorter timeframe, reducing the overall costs for the parties involved and allowing them to move on with their lives sooner.
3. Furthermore, mediation is a private process. Unlike court proceedings, which are typically public, mediation sessions are confidential. This privacy allows parties to discuss sensitive issues without fear of public exposure. This can be particularly important in probate disputes, which often involve personal and family matters which, curiously, are of passing interest to a lot of people (who read The Times, the Daily Mail and so) because if nothing else, we can all relate to a family squabble and that sells papers.
4. Also, the parties have much more control over the outcome of the process compared to a court ruling. Over the course of the day, they can negotiate terms that are mutually beneficial and tailored to their specific needs and circumstances. This collaborative approach can lead to more satisfactory and creative solutions. Compare this with a court hearing where the outcome can be much more arbitrary, where witness evidence is given under stress and where the parties are trying to impress their position with one shot on a judge who may have a very different view to another judge hearing the same case. And mediation is a flexible process too that can be adapted to the needs of the parties. Sessions can be scheduled at convenient times and locations, and the process can be tailored to address the specific issues at hand. This flexibility can make the process less stressful and more accommodating for everyone involved. 
5. Probate disputes usually involve family members, and litigation can exacerbate tensions and lead to long-term or permanent estrangement. Mediation encourages cooperation and communication, which can sometimes help preserve or even improve relationships. By focusing on mutual interests and understanding, mediation can foster a more amicable resolution.

1. Unlike a court decision, mediation does not guarantee a resolution.   Any one of the parties can get up and leave if they cannot reach an agreement.  And they may still need to go to court to resolve their dispute. This can result in wasted time and expense.
2. Mediation relies on the willingness of both parties to negotiate in good faith.  If there is a significant power imbalance between the parties, such as one party having more financial resources or legal knowledge, the process may be less effective.  A skilled mediator can help address these imbalances, but they may not always be able to eliminate them entirely.
3. Mediation is without prejudice and does not create legal precedents, which can be important in some probate disputes.  Court decisions can provide clarity and guidance for future cases, whereas mediation agreements are private and do not contribute to the development of the law (which is probably of little interest to the parties).
4. In litigation, the disclosure process allows parties to obtain evidence from each other and third parties.   Mediation typically involves less formal disclosure, which can be a disadvantage if one party needs access to information that the other party is unwilling to provide. This can make it more challenging to fully understand the issues and reach a fair agreement.
5. Mediators differ from one to the next.  The success of mediation can heavily depend on the skills and experience of the mediator.  An inexperienced or unskilled mediator may not be able to effectively facilitate discussions or help the parties reach an agreement.  So it is important to choose a mediator with expertise in probate disputes and a proven track record of successful mediation.
6. Probate disputes can be highly emotional, and mediation requires parties to engage in direct communication and negotiation. This can be difficult for individuals who are grieving or experiencing strong emotions related to the dispute. While mediation can provide a supportive environment, it may not be suitable for everyone.

Mediation offers a range of benefits for resolving contentious probate claims, including confidentiality, cost-effectiveness, time efficiency, and the potential to preserve relationships.  However, it also has its drawbacks, such as the lack of guaranteed resolution, potential power imbalances, and the dependence on the mediator's skills.  Ultimately, the decision to use mediation should be based on the specific circumstances of the dispute and the needs of the parties involved.

On balance, the pros do significantly outweigh the cons.  And ultimately, the parties are obliged to explore mediation or some other form of dispute resolution such as Early Neutral Evaluation.  If a party refuses to engage in the process, they are at risk of a costs penalty before the court.

In our experience, it is better to try and resolve the dispute sooner than later which is why mediation in particular has now become so central a waypoint in contentious probate disputes.  

If you wish to obtain advice concerning a contentious probate claim, please contact Noel McNicholas on 01926 887700 or noel.mcnicholas@thomasflavell.co.uk.