Mediation: an amicable resolution to Wills and Trust disputes

Disputes surrounding Wills and Trusts can be emotionally charged and often complex. While litigation through the Courts can be an option to resolve the dispute, this can be costly, time-consuming, and can place further strain on family relationships. However, mediation can be used as a viable alternative to reach a fair and amicable solution.

What is Mediation?

Mediation is a voluntary process where a neutral third party, the mediator, assists and encourages communication between those involved in the dispute. The mediator will guide the discussion, helping each party understand the other’s perspective and work collaboratively towards a mutually agreeable resolution.

What are the benefits of mediation?

Cost effectiveness: Mediation is significantly cheaper than litigation through the Courts, saving money on legal fees and court costs.

Timely resolution:  It is usually quicker to arrange a mediation than it is to pursue a matter through the slow Court process.  Mediations can often be arranged at very short notice. 

Preservation of relationships: Mediation encourages communication and understanding between parties, often reducing the impact of disputes on family relationships.

Input into the solutions: Mediation allows for flexible solutions, which enable the parties a degree of control and input into what they hope to achieve. This is very different to a trial, where a Judge ultimately makes the decision.

Confidential: Mediation is confidential and private.  Nothing agreed or discussed in a mediation can be communicated outside of the mediation or referenced within correspondence or court documentation.  This enables the parties to make concessions they might not be prepared to make in Court proceedings safe in the knowledge these concessions cannot be repeated should the mediation fail.  Court proceedings are usually open and available for anyone to attend.

Ability to walk away: In Court, once a judgement is made all parties are bound by the decision, regardless of whether they are in agreement with it. Failure to comply could result in serious repercussions. With mediation, there is no obligation to make an agreement and parties are able to walk away without an agreement should they feel uncomfortable with any settlement proposal.

How does a Mediation work?

Mediation can take place online (virtually) or in-person.  Both types have equal chances of success and essentially operate the same way.

A mediation will typically involve several stages.

The first step is to agree a mediator with your opponent and fix a date between all the parties attending.  There will usually be at least two parties and often more if there are several beneficiaries.  Executors often do not attend but will agree to sign any settlement reached.

Once a mediator has been instructed they will send their terms and conditions to the parties explaining their costs and any other important matters such as confidentiality.

Parties will often meet with the Mediator (usually online or by telephone).  Such a meeting is usually with legal advisers and is an opportunity for each party to meet the mediator and explain any concerns they may have.  The mediator will introduce themselves and explain the process in more detail.  If it is to be a virtual mediation, the initial meeting provides an opportunity to check everyone has good access to the internet.

One of the parties will then prepare a mediation bundle containing all the necessary documents for the mediation.  This is sent to the mediator and all the parties.  Following this, the parties might agree to prepare position statements which set out the stance they will adopt on the day.  This could be very different to the stance they take in the litigation.

On the day of the mediation,  the parties will sit with their respective legal representatives in separate rooms. The mediator will ensure they have a grasp of the facts of the matter and the parties’ positions.  Any queries can be settled.

Very quickly a successful mediation will move to offers of settlement. A party can make an opening offer, which is usually what they would be prepared to accept to bring the matter to an end.  When making the offer they will explain to the Mediator the reasoning behind it. The Mediator will then take this offer to the other party and discuss with them the justification behind it, before offering that the other side make a counter offer or accept.

Once an agreement has been reached, a settlement agreement can often be drawn up on the day for parties to sign.

Contact Us 

Please do not hesitate to reach out to our specialist Contentious Probate solicitors, led by Tara McInnes (tara.mcinnes@theburnsidepartnership.com) and Edward Capstick (edward.capstick@theburnsidepartnership.com, should you be considering, or facing, a Will or Trust dispute. They will be able to provide tailored guidance to advise on your matter and assist in obtaining a smooth resolution.