Mediation in Will Contest Claims – Your Questions Answered
1. What is mediation?
A mediation is a negotiation in a formal setting with a professional “mediator” who tries to help both sides to resolve their dispute – often by means of clever questioning, crystal ball gazing (eg. Where will we be in in a years time if the will dispute is not resolved??)
2. Does a mediator act as Judge in relation to your will contest claim?
Definitely not! Moreover everything discussed during the mediation remains confidential to it and cannot be used in any Court proceedings to determine the issue
3. Why bother with a mediation (and thereby pay a mediator) when you can simply negotiate your will dispute face to face or by telephone or exchange of correspondence?
The fact that your claim is still on-going is evidence enough that the more traditional means of resolving it have failed. A mediation is surprisingly (extraordinarily!) effective. The majority of our will contest claims are resolved by means of a mediation and indeed we have a 90% success rate (in terms of will claims that we resolve by means of a mediation).
4. What is the alternative?
There are of course alternative ways of exploring settlement in will contest claims. Simple, direct and/or face to face negotiation as mentioned is an obvious example. However, in our experience these tend to deteriorate into mud-slinging opportunities in will contest claims. The other is to take it to a trial!
5. Why not simply take the case to a trial?
The answer is simple – there is no certainty in so doing. In even the best of will claim or inheritance claim cases, there has to be a 35% risk since there is a large discretionary element in the hands of the Judge, when he or she considers it. Essentially, if your face doesn’t fit on the day, you could end up with a bloody nose! Mediation, in fact settlement in advance of a trial (not necessarily court proceedings – these might be necessary to force your opponent to see sense) buys you certainty in your will dispute, inheritance dispute or will contest claim and yes, it does mean that this “risk” can be considered to have a price.
6. What happens if either I or the other side decide to ignore a request to “mediate”?
The Court of Appeal have made it very clear that a failure to mediate without good reason can mean that the party refusing to participate in relation to his or her will contest claim can be ordered to pay the other party’s costs, notwithstanding they went on to actually win the case!! (refer to PGFII SA v OMFS Company 1 Limited 2013 EWCA Civ 1288).