Martin Hall, Head of Litigation
In many contentious probate matters, court proceedings are more likely than not inevitable. Litigation places significant strain on family relationships. Often widening existing rifts and creating new animosities that can persist long after the legal issues have been resolved. It is also costly, time-consuming, and frequently unpredictable.
Mediation and other forms of Alternative Dispute Resolution (ADR) offer a constructive alternative. Which can keep such disputes under control and, in many cases, avoid the need for a full trial.
One of the key benefits of mediation is that it allows the parties to retain control. In proceedings, the decision ultimately rests with the Judge, who must apply legal principles even when they may not align with what the parties consider fair.
By contrast, at mediation, a neutral third party, typically an experienced barrister or accredited mediator, facilitates discussions without imposing a decision. Parties are usually placed in separate rooms, each supported by their legal representatives. The mediator moves between the rooms to convey proposals, test the strengths and weaknesses of each party’s case, and encourage constructive negotiation. This shuttle process helps the parties to focus on realistic outcomes. And often diffuses tension, enabling progress that might be impossible in a joint meeting.
Cost
Cost savings are another significant advantage. Contentious probate claims can involve extensive correspondence between parties, disclosure exercises, expert evidence, valuations and multiple hearings. Mediation can dramatically reduce these costs by enabling early resolution, sometimes after only limited exchange of documents and correspondence. Even where a case does not settle on the mediation day itself, the process often narrows issues, clarifies misunderstandings, and lays the groundwork for a later settlement.
Speed
Speed is also an important consideration. Court proceedings can easily take 12 to 24 months or more to reach trial, with further delays if appeals arise. Mediation can take place at any point. And can resolve matters within days or weeks if the parties are willing to engage constructively. This can be particularly valuable where estate assets are deteriorating, where beneficiaries require clarity for financial planning, or where executors are unable to complete their duties until the dispute is resolved.
Finally, mediation helps preserve, or at least prevent further erosion of, family relationships. Even where reconciliation is impossible, a respectful negotiated settlement is far less damaging than adversarial court proceedings. Parties often find that being heard in a facilitated environment reduces hostility, allowing them to move forward more easily after an emotionally charged dispute.
For all these reasons, mediation and other means of ADR should be viewed as an integral part of the contentious probate process, offering a practical, humane, and efficient means of resolving probate disputes. If you require advice or representation concerning a mediation in a probate dispute. Our Contentious Probate team is available to assist.
