Our previous blog discussed the benefits and pitfalls of mediation. The Court tends to expect parties to mediate/alternative dispute resolution because of the combination of litigation risk and irrecoverable costs. Failure to do so may have cost consequences – in this case, the Court ordered the Defendants to pay 75% of the Claimants’ costs even though the Claimants had failed to beat an offer by the Defendants. The justification was that the delay to the mediation, which had real prospects of settlement success, was caused by the Defendants, leading the Claimants to lose confidence in the mediation.
A number of benefits of mediation are particularly relevant in probate/trusts disputes:
- Mediation has the potential to resolve a dispute much more quickly than proceeding through the Courts. This can be particularly relevant where the administration of an estate is delayed pending the resolution of the dispute;
- The emotional benefits of allowing the parties to move on from the dispute following the death of a loved one;
- Cost savings in achieving a resolution. This can be particularly relevant where the size of the estate is small; and
- Settlements do not necessarily have to take the form that a Court would order but can be much more flexible.
Parties
Parties who are not directly involved may not want to incur the costs of attending a mediation. As the executors will be the ones to implement the settlement through the administration of the estate, it may be preferable to obtain their agreement to the form of settlement in order that any difficulties can be resolved before an agreement is signed between the active parties at the mediation.
Parties may wish to bring along a friend as moral support. The parties should confirm in advance who will be attending, and consent from the other side may be required. The mediator and the parties’ representatives will need to manage a friend if necessary, avoiding him/her influencing or even taking over the process.
Structure of the mediation
A mediation tends to consist of the following stages:
1. Parties agreeing what papers are to be provided to the mediator prior to the mediation and their timeframe. They tend to be the position statements and the mediation bundle. In more complex cases, an agreed neutral case summary and list of issues may be necessary;
2. The mediation traditionally commences with a joint opening session, which may not take place if it is likely to heighten emotions and push parties away from rather than towards settlement;
3. During the mediation, there will be private sessions between the parties and the mediator for the mediator to explore the parties’ positions, clarify the issues, and identify the parties’ interests. The mediator will also provide the parties with a fresh perspective through reality checking. As the mediator moves between private sessions, he/she will relay offers and points made by each room with the consent of the parties; and
4. If a settlement agreement is reached and no Court approval of it is required, the Claimant tends to draft the settlement agreement, Tomlin Order, and/or Notice of Discontinuance for agreement with the other side.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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