Court or Mediation – what’s the best way to resolve a will dispute?

One of the questions you are bound to ask yourself when you are thinking about challenging a will is “How will this all end?” Many people have very little involvement with legal disputes. Even their experience of working with a solicitor may be limited to buying a house. Many people have a mental picture of a court room drama playing out when they think of a will dispute. The reality is that many will disputes are resolved through mediation – although some will end up in court.

The advantages of mediation

Mediation has a number of advantages for both sides of a will dispute.

• Challenging a will is a stressful process, and mediation can often result in a quicker resolution than waiting for a court date to become available.
• Mediation can cost less than a full court hearing
• You can agree things in mediation that a court can’t deliver
• It may offer the opportunity to heal some of the relationships that may have been damaged through the course of the dispute.

Unlike some other legal dispute procedures, there is no requirement to try mediation when you are challenging a will, but it can be a productive way of resolving a dispute.

The uncertainty of a court hearing

Ultimately, if both sides in a will dispute cannot reach a compromise position, either through mediation, or negotiation, the matter will end up in Court. This will inevitably take longer and cost more than resolving the dispute through negotiation and mediation. The courts have less flexibility in the outcomes they can impose. There is little opportunity for the people involved to come to any sort of reconciliation. Finally, if you end up in court, both sides will have a decision imposed upon them which can leave you feeling even more disappointed.

What is involved in mediation?

Just as for a court hearing, mediation involves a certain amount of preparation in advance. Whether you are the claimant or the defendant in the case, you will attend at a location with your legal adviser. You will be allocated a room for the course of the mediation for you and your legal team, likewise your ‘opponent’ and their legal team will have their own room. The mediator will spend time with each of you to fully understand your positions, and then act as a go between with the aim of reaching a common position that you can both agree on.

Choosing mediation

Most solicitors involved in challenging wills are open to the possibility of mediation. We see it as a far more constructive route to resolving these very difficult disputes. Mediators are highly skilled facilitators who are experienced in helping people who are in dispute find common ground and reach resolution. As they are independent and can step back from the dispute, they can offer bring a different perspective to the process. This can be helpful to both the person challenging the will, and those who want to see the will kept as it is.

What if mediation doesn’t work

If mediation doesn’t work, and you cannot reach an agreement in this way, your options then do narrow down to going to court or withdrawing altogether from the dispute. Using mediation does not mean you can’t go to court later if the mediation doesn’t work. You could see going to court as a ‘final solution’, but it’s always worth considering mediation as a serious option first. You may be able to resolve your dispute without the additional stress and delay involved in going to court.

In some respects, looking at the question of court or mediation as an ‘either/or’ question does not recognise the fact that they are not mutually exclusive. You can try to mediate but this does not close off the possibility of going to court if necessary. At Willclaim Solicitors, we usually advise our clients to try and mediate if possible. Our experience is that if a court hearing can be avoided, this should be encouraged! We can talk you through your will dispute, and explain how mediation could work to bring about a swift resolution to the dispute allowing you to get on with your life. Get in touch if you’d like to find out more.