If there is a dispute over a will, trust or estate – is it sensible to mediate?
Disputes over wills, trusts and estates are often legally and factually complex and strong emotions frequently evoked. Avoiding the court process with its inevitable high cost, the risk of losing or not being able to recover all legal costs (even if you win) is usually high on the list of priorities. With this in mind, could mediation be the solution?
In recent years alternative dispute resolution (ADR) has become an increasingly important aspect of the dispute resolution process. A key component of this is mediation, a process many legal practitioners will be familiar with. In the complex world of settlement initiatives those wishing to avoid a dispute must be aware of the options available and the risks and advantages of using or failing to use ADR.
What is mediation?
Despite suggestion in some circles that ADR ought to be a mandatory requirement before court action is taken it remains, for the time being, a voluntary process. One of the advantages of mediation is that it is a confidential process undertaken by an independent trained mediator who acts like a referee. Confidentiality and flexibility afforded by the mediation process often helps encourage parties to settle. In my experience the mediation process also gives the parties a flavour of what might come next should they be unable to resolve their dispute. It can also serve to narrow the issues should the mediation fail, thus saving costs in any subsequent litigation.
What if a party refuses an offer to mediate?
A party who unreasonably refuses to mediate may be penalised by the trial judge in costs. An unreasonable refusal to mediate might result in the winning party not being able to recover all their permitted legal costs. Indeed, the trial judge may order that the winning party receives no costs or even, in exceptional circumstances, order the winner to pay an element of the loser’s costs.
Similarly, a party who unreasonably delays accepting an offer to mediate or changes his or her mind, can find they are hit with a similar sanction. Of course there are circumstances where a failure to mediate may not affect the costs position e.g. where it was reasonable not to engage in mediation.
If court action is already underway or unavoidable then the court will encourage the parties to engage in ADR. Whilst the court cannot currently compel a party to mediate or engage in ADR it has shown itself to be ready to punish parties who have been unwilling or refusing to mediate. At all times during a dispute, parties and their advisors must ensure that they do all that is reasonably possible to avoid going to court in the first place or, if this is unavoidable, to settle before a trial. Those who get it wrong may “win” but experience a bittersweet victory.
We realise this can be confusing and specialist advice should be sought to ensure you achieve the most effective result. If you need legal advice relating to a dispute over a will, trust or estate then please call the team today on 01752 203500.
Tony Pearce, solicitor