Lawyers in dispute resolution will no doubt have seen the marked increase in the use of mediation in all areas of dispute over the last decade. If, however, the Judge’s comments in the recently decided case of Weisz V Weisz & Ors are anything to go by, it appears inheritance/probate disputes are behind the curve in terms of the use of mediation.
Francis J, the presiding High Court Judge, commented:
“The claimant’s costs – and this is just for today and not the claim overall – are just over £18,000. The costs of the third and fourth defendants, who are two of the children of the deceased, are £37,880. Remarkably, I am told that the executors of the estate do not even know what their costs of today are…But, if I take the executors’ costs as being the same as the claimant’s…then that means that the overall costs of today are in the order of £74,000…It cannot be proportionate for so much money to be spent on this issue and it is very sad indeed that the parties have been unable to settle today’s application. If this were a commercial deal rather than a family row, they would not have spent this amount of money on this litigation because it would not be commercially sensible to do so, and the only way they are going to settle this litigation – whether it be next week or some time next year – rather than fight the case, the only way they are going to do so is by standing back and taking a commercial view, on advice’.”
The above passage is clearly a reminder to all litigants in probate actions to try to remove the emotion from the claim and look at the commercial reality of the claim when set in the context of the substantial costs that are likely to be incurred pursuing this matter to trial.
Use of mediation in inheritance disputes
At Nelsons. we are big supporters of the use of mediation as a means of resolving inheritance disputes cost effectively and in the last six months alone we have attended five mediations on probate disputes on behalf of our clients where a settlement was reached either at the mediation or shortly thereafter.
Whilst the settlement at mediation might not be everything that a client wants, trials are inherently uncertain and unpredictable places to be. With this in mind, when they talk things through with an independent mediator and try to divorce the emotion from the situation, most clients opt for certainty of a settlement over the uncertainty of a trial.
How Nelsons can help
Kevin Modiri is a Partner in our expert Inheritance Disputes team.
Should you have any queries relating to mediation in the contentious probate context, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.