When a legal claim is made, there are certain steps that need to be carried out before a claim is issued so that everyone knows what claim is to be made and what the response will be. This also allows attempts to be made to try and resolve the dispute without the need to issue court proceedings. For a contentious probate claim, this mediation process comes from a pre-action protocol set by the court and from the ACTAPS Code, which is a code set out by the Association of Contentious Trusts and Probate Specialists.

Once the parties are aware of the nature of the claim, the protocol and the ACTAPS Code will recommend considering alternative dispute resolution methods if possible, one such method is through mediation with the help of a professional mediator. 

In this guide, the will disputes experts at JMW have outlined why mediation can be a positive part of the dispute process, how it works and could be used to your advantage in order to resolve a conflict or dispute before the matter goes to court and what happens if a party refuses to mediate.

How Does Mediation Work In a Contentious Probate Claim and How Can I Use it to My Advantage?

Mediation is a flexible, voluntary and confidential form of dispute resolution where an independent third party (the mediator) assists the parties to try and reach a resolution of their dispute. The parties do not necessarily need to see each other during this process, and the solicitors can conduct most, if not all, of the communications.

Because contentious probate disputes are often between family members, this form of negotiation can often be effective as parties get to voice their concern as part of the process but without needing to face their family directly when doing so. A court can only deal with the legal aspects of a dispute, but mediation also offers a way of reaching a settlement about more personal or sentimental things, which court proceedings could not resolve. For this reason, mediation can be highly beneficial in a contentious probate dispute as there are often related matters which a court could not determine. Further, mediation offers a quicker and more cost-effective way to deal with a dispute than bringing a claim through the courts.

What are the Advantages of Mediation In Contentious Probate Disputes?

Legal processes can be expensive and time-consuming, and this may only be exacerbated by the stress that can arise following a loved one's death. Mediation offers any parties who have fallen into conflict after someone’s death an opportunity to resolve their differences quickly and at a lower cost. Sometimes, this can preserve family relations, as well. With the added help of a professional mediator, the negotiations can be conducted calmly and fairly, with the desired outcomes of all parties in mind.

Mediation can be much more cost-effective than enduring the full financial burden of launching or defending a legal claim in court. A successful mediation will reduce the risk of legal costs being ordered against you if you were to lose a claim, and the cost of the process itself will be cheaper than dealing with a claim in court. This may be especially important in cases such as inheritance disputes where you and the other parties involved will be looking to save as much money as possible.

Settling a will dispute through mediation is also much quicker, which can make the entire process of managing and administrating the deceased’s estate faster and easier.

What Happens if a Party will not Mediate?

If one side refuses to mediate, it may result in the court penalising them at the end of a court case regardless of the result. In extreme cases, even where a party has been successful with their case and would normally be expected to recover their costs from their opponent, a refusal to mediate can lead the court to order that those costs cannot be recovered.

What is the Process of Will Dispute Mediation?

Mediation is often a quicker, less stressful way of resolving disputes over a will. The aim is to facilitate discussions and encourage compromise so that everyone leaves with a fair outcome that suits their needs. Here's a general guide to the process:

Initial Consultation

Before the mediation process starts, it’s common for the disputing parties to have an initial consultation with the mediator. This can happen separately or together, depending on the circumstances, but it is often the case that the parties do not wish to get together, and that is accommodated. The mediator will explain how the process works and what to expect.

Preparing for Mediation

Before attending the mediation session, you’ll want to consult with your solicitor. They can help you understand the legal implications of your dispute and assist you in preparing any documents or evidence that may support your case.

The Mediation Session

On the day of the mediation, each party will have the opportunity to explain their side of the story. Unlike a court setting, the atmosphere is usually more relaxed and open to discussion, though you should still make sure to honour the formalities of the process. Your solicitor will explain the formalities of the process and how the day is likely to work.

The mediator does not take sides or make judgments; their role is to facilitate communication between the parties. Both parties are usually in separate rooms, and the mediator goes between them, discussing the issues and potential resolutions. This can help lower tensions and allow for more open, honest communication.

Reaching an Agreement

If all goes well, the parties will come to an agreement by the end of the mediation session. This will typically be documented in a settling agreement, which will be signed by each party before the end of the day.

Final Steps

Once both parties are satisfied, the agreement can be made legally binding by converting it into a consent order or similar legal document, if proceedings have commenced. This finalises the resolution and prevents future disputes on the same issues.

What if Mediation Doesn’t Work?

If mediation doesn't lead to an agreement, the parties are free to pursue other avenues, such as taking the matter to court. However, the discussions that took place during mediation are usually confidential and cannot be used as evidence in court proceedings.

Will dispute mediation isn’t a one-size-fits-all solution, but it can be an effective way to resolve conflicts without the need for a court battle. Always consult with a qualified solicitor to discuss whether it's the right option for you.