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A Mediator ’s View of a Will Dispute

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Many people hold a view of a legal dispute that includes a court room drama worthy of a John Grisham novel, but the reality is very different, and this applies as much in the context of a will dispute as to any other legal claim (criminal matters aside). Mediation now plays a big part in resolving will disputes – it’s a process of dispute resolution that you may not have come across before, but has several advantages for those involved. We talked to Phil Hesketh, an independent mediator, to give an ‘inside view’ of a will dispute – from the mediator’s perspective.

How did you become a mediator?

I qualified as a solicitor and worked as a personal injury solicitor, acting for injured workers. I felt I was providing a valuable service. However, I trained as a mediator in 2006 and realised I had found my true vocation. I discovered that I found helping people resolve their disputes as an independent party (rather than as a personal injury lawyer where I represented one side of a dispute) much more rewarding!

What do you consider to be the value of mediation?

Mediation offers several advantages if you’re involved in a will dispute. It’s much quicker than waiting for a trial. The mediation takes place on one day, and the parties retain control of the process. Another advantage over a trial is the parties cannot have a bad decision imposed upon them – if a solution is reached, it is because the parties all agree to it. There are huge cost savings for everyone involved if a will dispute is resolved through mediation. Finally, mediation gives the opportunity to work flexibly and draw up an agreement that resolves the issues in a more creative way than a court judgement can.

What is your role in the mediation?

It’s important to point out that I am independent – I work for both sides. I’ll communicate offers and discuss responses, with the aim of helping the people involved move towards a settlement acceptable to all. I can only pass on information from one person if they have given me permission to do so. As a mediator, I am there to tease out the issues, really get to the heart of what the people involved are seeking to achieve, and then help them to reach a solution. I’ll spend time finding out what each party is looking for. On first discussion, this can be quite general. Parties will say they “want an end” to the dispute, or “a fair resolution” so I need to understand what that means to them. Once this is clear, I can help the parties work towards agreement. I do this by moving between the private rooms where the different parties are based for the day, talking to each side.

How do you manage a situation when one side makes an offer that you know will upset the other side?

It’s not my job to judge what is a good or bad offer. On the other hand, if I know that an offer being proposed is likely to harm the negotiation process, I can invite them to reflect on whether, ultimately, making that offer will help them achieve the solution they are looking for. I help them explore other options but ultimately the parties decide what to do.

Are there any ‘down sides’?

Sometimes I finish a mediation with the parties having agreed a solution to their legal dispute but they have done this without actually speaking to each other during the process and leave it feeling as bitter and acrimonious towards each other as they did when they started. I feel this type of mediation, although resolving the legal dispute, misses a great opportunity for the parties to start some repairs to their relationship. I don’t mean that they will become best friends but just that they can deal with each other in the future in a more constructive way, without the need to correspond through lawyers. Not everybody wants to even consider this as an outcome but the potential is there and I am always disappointed when the parties decide not to engage with each other.

And the positives?

Well, aside from the advantages I’ve already mentioned, mediation offers the people involved an opportunity to be listened to, to have their complaints acknowledged, and to explain how the situation has impacted on them – even if it is just by me as the mediator. It’s a much ‘safer’ environment than a court room. Ideally, mediation results in the parties walking away having decided how to resolve the dispute and feeling in control of the outcome. Even if the mediation doesn’t result in a settlement, then the process should have helped the people involved be clear about the issues, and have a full understanding of why they decided not to settle.

Phil Hesketh is an independent mediator and consultant personal injury lawyer based in the northwest of England. You can read more about his services on his website.

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a conference room is where you may spend the day if you engage in mediation to resolve your will dispute

The benefits of Mediation in a will dispute

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In a series of blogs in which we look at mediation and the role it plays in resolving a will dispute and other contentious probate matters, here we consider the benefits of mediation.

What is mediation?

Mediation is a form of dispute resolution which involves negotiation between the parties, managed by an independent mediator. Mediation will take place on a particular day, and in a specified location. The person bringing the claim, and all the other parties involved, attend with their legal advisers. Although there may be an initial ‘joint meeting’ with everyone in the same room, for much of the mediation, the parties involved in the will dispute will be in separate rooms, with the mediator moving between rooms to communicate and discuss what is on the cards.

What happens during the mediation remains confidential. If the mediation does not result in an agreement and the case does go to a court hearing, nobody can refer to something that was said during the mediation.

The rules governing contentious probate disputes require the parties involved to consider and engage in some form of dispute resolution before a court hearing can go ahead. If you unreasonably refuse to co-operate, you can face stiff penalties from the courts, usually involving the payment of costs.

Mediation puts the individuals involved in the claim back in control

If you’ve ever had the experience of taking part in a full court hearing, you’ll perhaps appreciate that the individuals bringing or defending the claim can often feel as if they are playing a ‘walk on’ part in someone else’s drama. The whole scene is set up in a way that the lawyers and the judge play the major part, while you will only be able to speak when giving evidence, and being questioned.

Although you are legally represented during a mediation, there is none of the formality of a court room, and you are free to speak directly to the mediator should you wish to do so. Of course, if you don’t feel comfortable with this, your lawyer will be there to handle the negotiations, but this is up to you. Another way in which the parties are more in control is that the outcome will be agreed between them, rather than imposed by a judge. This, in itself, has lots of advantages, which we’ll look at next.

Mediation offers flexibility

If your dispute reaches a court hearing which runs to its conclusion, the judge will have very limited options. Your claim (or the claim you are defending) will either succeed or not, and the judge will be obliged to follow the outcome of that decision. In practical terms, this could mean that a will is held to be invalid in its entirety (a judge can’t decide that only part of a will is invalid) with all the consequences that follow from this.

A mediation is a far freer forum, unconstrained by the conventions of a court hearing and the restrictive options that a judge has open to him having heard evidence and legal submissions. No one ‘makes a decision’ in a mediation; there is no judgment. Instead, the parties involved negotiate to reach a conclusion to the matter, and this can include far more flexible and creative solutions than are open to a judge.

Mediation can result in creative and tax efficient settlements

Following on from the point about flexibility, a judge is limited in his options and can’t take into account things like potential tax consequences of a decision – this could mean that although you succeed in your claim, you may incur other disadvantages as a result.

The flexibility that mediation allows means that all these additional possibilities and consequences can be thrown into the mix as part of the negotiation, with the aim of reaching a far more practical solution to the issues than could be achieved in a court room. Settlements reached through mediation can include acknowledgements by one or both of the parties in relation to the situation that they found themselves in.

Mediation offers a significantly more cost-effective option than litigation

No one can enter into a legal dispute without giving a thought to costs. For most people, it will be a very significant thought – because legal costs can be extremely high. If a will dispute reaches a court room, the costs of the exercise can well reach 6 figures. Even if you have a ‘no win no fee’ arrangement with your legal team, and you win your claim, you won’t be able to recover all your costs from the losing party, and the legal costs can eat into any sums of money you have secured. If you lose your claim, you may not have to pay your solicitor’s fees but there will be other costs that you will have to pay, such as court fees. You may also have to pay the costs of the other side.

Mediation offers a far more cost-effective solution. That isn’t to say there will be no costs involved, but they will almost always be significantly less than the costs involved in proceeding to a court hearing, which has no certainty, and quite a number of risks involved.

Mediation can be a less stressful solution

Sadly, the reason you are contemplating this kind of legal action is because someone close to you has passed away. A court hearing can add even more stress to what is already a stressful situation.

Mediation is a much less stressful approach which allows you to be heard, but in a more comfortable environment than a court room. It will almost certainly involve compromise to reach an agreement. However, you will achieve a negotiated settlement that may be more beneficial to your situation than a court decision will be. Further, you will get there far more quickly and less expensively than going all the way to court, allowing you to put the matter behind you.

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