Can A Court Order The Parties to A Will Dispute To Mediate
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether a Court can order the parties to a Will dispute to mediate or engage in ADR
ADR and mediation in Will dispute and Will contest claims?
ADR stands for “alternative dispute resolution” – it is a way of resolving disputes without having a trial. It has a several advantages over a trial:
- it carries little or no risk whereas if a trial is lost, the losing party will in general pay the winner’s costs
- there is no restriction on what can be agreed between parties who resolve a dispute outside of the ambit of a Court whereas a trial Judge is limited by the law [accordingly and by way of a very poor example – agreement can be reached about access to properties, the distribution of photos and other personal possessions, to vary Will terms in novel ways – about absolutely anything]
- it avoids potentially huge expense and the wait for a trial, considerable stress and potentially an even more expensive appeal and further delay. Notwithstanding many Solicitors engaged in Will dispute and Will contest claims appear to go out of their way to avoid ADR as a process, it is actually a “pre-action” (pre Court proceedings) requirement in any event by virtue of the “Practice Direction – Pre-Action Conduct and Protocols”.
PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS – Civil Procedure Rules (justice.gov.uk)
We have copied and pasted the relevant section below:
Settlement and ADR
- Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
- Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued. Back to top
- Parties may negotiate to settle a dispute or may use a form of ADR including—
(a) mediation, a third party facilitating a resolution;
(b) arbitration, a third party deciding the dispute;
(c) early neutral evaluation, a third party giving an informed opinion on the dispute; and
(d) Ombudsmen schemes.
(Information on mediation and other forms of ADR is available in the Jackson ADR Handbook (available from Oxford University Press) or at— https://www.gov.uk/guidance/a-guide-to-civil-mediation - If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
The present position – Courts can already order parties to engage in its own version of ADR The position (confirmed relatively recently) was that Courts could already force parties to engage in its own “dispute resolution service” called “ENE” or “early neutral evaluation” but not, it seemed, in an independent form of ADR such as a mediation. Our earlier blog cited below, deals with the foundations of this:
“ENE” is similar to a Mediation, but where the Judge acts as a mediator and can throw in some heavy weight judicial views on the likely outcome. It is highly effective and each party can
expect to receive a good judicial “thumping” to encourage a more conciliatory approach. It is sufficient to persuade even the most confident of litigators that the risk of moving forward
towards a trial is too great to contemplate. Equally although it can be ignored and of course the Judge hearing the ENE won’t sit as the Judge at the trial, there is always the nagging fear that
“unreasonable” behaviour at the ENE or a refusal to negotiate, could translate into an adverse finding at the trial – Judges after all will talk to each other.
Churchill v Merthyr Tydfil [2023] EWCA Civ 1416
In this very recent decision from the Court of Appeal,
it would appear the Courts powers may have been further extended to include requiring the parties to a Will contest claim or Will dispute claim to participate in independent ADR processes such as a mediation. The conclusions of this case can be found at paragraph 74:
Conclusions
- For the reasons I have given, I have decided that:
i) [9]-[10] of Halsey was not part of the essential reasoning in that case and did not bind the judge to dismiss the Council’s application for the stay of these proceedings.
ii) The court can lawfully stay proceedings for, or order, the parties to engage in a non-courtbased dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
iii) I decline to lay down fixed principles as to what will be relevant to determining the questions of a stay of proceedings or an order that the parties engage in a non-court-based dispute resolution process. Many of the factors mentioned at [61]-[63] above and the nature of the process contemplated will be relevant, as will other circumstances.
iv) I would decline to make any order for a stay of these proceedings at this stage for the reasons given at [67]-[73] above.
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.
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