Challenging a will and the role that mediation can play in reaching an out of court settlement quickly and economically.
What is mediation?
Mediation can take place in various forms, but it usually involves all the parties attending a venue together, along with a trained mediator, with the intention of reaching an out of court settlement.
The mediator, who is often a lawyer themselves, has the role of encouraging the parties to settle the dispute. The mediator may have their own view on the case, but they are not there to act as a judge. Their role is simply to broker a deal.
A member of our team will attend the mediation and sometimes a barrister will also be involved.
There is no need for the parties to have any direct contact with each other at the mediation. The negotiations take place via the mediator who liaises between the two sides without the need for a face to face meeting.
An alternative format is the ‘virtual mediation’. We have so far conducted three virtual mediations involving contested wills during the coronavirus lockdown. All three have settled with excellent results for our clients.
What are the benefits of mediation when challenging a will?
- Time – mediation can take place within just a couple of months of the claim being started. By contrast it will usually take 12 – 24 months for a case to come to trial in a UK court. Furthermore, mediations rarely last longer than a day, while a trial can go on for a week or longer.
- Costs – as the mediation takes place a lot sooner than a trial, the legal costs are significantly less. The costs of challenging a will can often exceed £50,000 on each side if the case goes all the way to a fully contested trial. Where the parties mediate the dispute early on, the legal costs can be managed much better.
- Flexibility – one of the the beauties of mediation is that there are no hard and fast rules about how the parties reach a settlement and what the settlement terms should be. Compare that to a trial where judges are limited in what awards they can make. For example, we are quite often asked by clients to recover a particular item of sentimental value and this is entirely possible at mediation because the settlement can be customised and personalised. In one case we were even able to agree the wording for a gravestone during the course of a mediation.
- Closure – the sooner the case concludes, the sooner you will achieve closure. With probate litigation, this often means you can start to grieve for your loved ones.
- Emotional cost –challenging a will always takes its toll on the parties. Probate litigation in particular can be difficult because of the personal nature of the disputes and the allegations made. The longer the dispute takes to resolve, the greater the stress for those involved. Mediation allows the parties to air certain issues which they would not necessarily be able to do at trial. It also means that formal cross-examination on oath in a witness box can be avoided, which many people find particularly difficult and stressful.
What do the courts say about mediation?
The courts are keen to encourage people to mediate. In fact, a recent court decision highlighted the need for parties to consider and engage in mediation and other forms of dispute resolution. In that case, the defendant refused to engage in settlement negotiations – including mediation – on the grounds that they were confident in the strength of their defence.
The defendant went on to lose at trial, and was ordered to pay the claimant’s costs at a higher rate than usual. The judge commented, “No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution”. This decision reinforces the important role payed by mediation in civil dispute resolution including cases involving challenging a will.
If you wish to speak with a solicitor who specialises in challenging a will then give us a call on 0333 888 0404 or send an email to [email protected]
