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5 benefits of mediation in a will dispute

Five Reasons to Consider Mediation in a Will Dispute

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What is Mediation?

Disputing a will can be expensive, time consuming and emotionally draining if pursued through the courts. Mediation is an alternative approach to consider when deciding how to contest a will. This involves negotiating a settlement with the other party, outside of court. A will dispute is different to other types of legal claim because mediation is optional, not required. Five reasons to consider the option of taking a mediation approach are set out below.

  1. Financial Benefits of Mediation

Challenging a will is an expensive process because of the costs involved in hiring lawyers to represent you: when a will dispute is brought into court, legal fees amount to tens of thousands of pounds. If you lose your claim, you will not retrieve extra money or assets from the will. In addition to your own legal costs, it is likely that you will also have to pay legal expenses for the other side.

Even if you win the will dispute, the extra money gained from the will might have to go towards paying certain legal costs. Therefore, mediation is generally a less expensive method of resolving a will dispute because it eliminates a large portion of the legal costs associated with going to court.

Also, decisions made by judges are generally rigid in terms of their financial considerations. A judge is unlikely to consider the complex tax implications of a judgement for contentious probate. However, if you settle a will dispute through mediation, it becomes possible for both parties to seek a tax efficient structure for the settlement.

 

  1. Control of the Process

A courtroom is a formal setting with strict rules about who can speak and when. In court, claimants and defendants can only speak when questions are addressed to them, or to give evidence. You might feel in a courtroom that control over your will dispute is taken out of your hands or that you have not had an opportunity to talk through some of the issues that are important to you.

By contrast, in mediation, it is possible to make arguments and hold discussions in a less formal setting, where you do not need to adhere to the same rules of a courtroom. This would give you the freedom to take control of the discussion and contribute as you wish. In mediation, lawyers are present during discussions so if you would prefer to have someone advocate for you throughout the process, this option is still available. 

  1. Certainty of the Outcome

There is much uncertainty involved in disputing a will through the courts. It is impossible to know for certain what the judge will decide until the hearing is over. However, through mediation, a settlement can be reached that has to be agreed on by both parties before it becomes official. This provides an added degree of certainty because you will know what you are agreeing to, whereas through the courts, the outcome is unknown before the binding judgement.

  1. Flexibility of Possible Solutions

As with taxation, a judge’s options for the overall outcome of the dispute are rigid. Disputing a will through the courts can therefore impose limited outcomes on your claim. For example, it is not possible for a judge to rule that only part of the will is invalid: they might invalidate the entire will, even the sections you agree with.

Mediation, on the other hand, provides wider possibilities for ways to settle the dispute. Negotiating can lead to a more satisfactory outcome that adds specific provisions that a judge would be unable to enforce. The flexibility of mediation can allow for a better outcome, tailored for the specific facts of your situation.

  1. Less Stressful than a Court Hearing

Finally, a will dispute can be a stressful process. One reason for this stress is that disputing a will can create tension in families. This leads to the emotional strain of potentially engaging in a court case against one’s family. Mediation is a way to resolve a conflict without having to present contentious arguments in a courtroom. This also poses a valuable opportunity to mend family relationships and avoid further conflict.

Furthermore, court cases over will disputes have been known to last for months and occasionally years. This is especially relevant when cases are appealed to higher courts. Choosing mediation makes it much more possible to resolve a will dispute in a short time frame. In fact, mediations can take as little as one day to arrive at a settlement.

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

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

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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.

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how long will it take to resolve a will dispute

How long does it take to resolve a will dispute?

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How long does it take to resolve a will dispute? You may have read about the long-running case of Ilot v Mitson which involved a dispute about a will in which a woman left her estate to animal charities rather than to her estranged daughter. The legal process took over 10 years, from the first court decision, to the final decision earlier in 2017 from the Supreme Court. While it’s unlikely to take 10 years, any legal action can take a long time, so it’s worth bearing in mind how long it can take to resolve a will dispute.

Are there any time limits?

Different types of legal action have different time limits. You may be aware of this from other types of legal action you may have been involved in – for example a claim for personal injury. If you are bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975, you have 6 months from the date of the grant of probate to start your claim. If you are bringing a claim challenging the validity of a will (and not a claim under the 1975 Act) there is no time limit. However, the longer you leave it, the harder it may be to gather good evidence to support your case.

Do I launch straight into a court process?

Assuming that you bring your claim within 6 months of the grant of probate (whatever type of claim you are bringing), it is likely that there will be a certain amount of preparation and discussion before you get close to a court. It may be possible to resolve your dispute relatively quickly through an exchange of correspondence and a process of ‘disclosure’ with solicitors representing ‘the other side’: this may be the executors of the will, the other beneficiaries under the will, or a combination. This process has the benefit of allowing both sides to consider the evidence and to take decisions based on all the facts, potentially helping to resolve a will dispute more quickly. Even if it does not allow for a successful conclusion of the dispute at that stage, it may well open the way for Alternative Dispute Resolution.

Can Alternative Dispute Resolution speed things up?

Alternative Dispute Resolution including Mediation can offer a number of benefits to those involved in a will dispute, not least the fact that it can result in a swifter conclusion of the matter. Mediation is something we use regularly, and you can read more about mediation, and its role in a will dispute, here. Rather than waiting for court time, the people involved in the will dispute agree to appoint a mediator, and set up the mediation themselves. You can use mediation at any stage before reaching trial, so even if initial attempts to mediate fail, it may be possible to conclude proceedings through mediation at a later stage, still saving time.

Does using ADR delay things?

If you have started court proceedings, these will continue to unfold regardless of whether you are attempting to seek a mediated conclusion to the proceedings. The court’s timetable is inevitably slower than any timetable of negotiation and/or mediation – and should you reach a conclusion through ADR, the court proceedings can then be withdrawn.

If I can’t mediate – or the other side won’t – how long am I looking at?

It can take a year or more to get to an initial hearing in court. As those involved in Ilot v Mitson – and others – have found, this is not always the end of things. Should one side decide to appeal a decision, the will dispute can continue for some time, first to the Court of Appeal, then to the Supreme Court – although this is the exception rather than the rule, and means there is an important point of law involved in the case.

Highlighting the potential length of time it may take to resolve a will dispute is not intended to put you off. However, it’s important to be realistic about how long it may take – and how long it will be before you can move on. Get in touch with us to discuss your situation and the details of the will dispute you are considering. We offer a free claim assessment , and will be able to give you a better idea of how long things may take once we have reviewed the facts of your case.

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The Supreme Court has upheld the principle of testamentary freedom and so if someone wishes to leave their estate to charity, such as in the case of Ilott v Mitson, adult children will find it hard to succeed under the Inheritance Act 1975

Gifts to charity – can they be challenged?

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It’s not often that legal disputes over the contents of a will make the front pages – but a long running saga that has recently been concluded in the Supreme Court relating to gifts made to charity in a will at the expense of surviving children, has done just that.

Challenging a will under the Inheritance Act 1975

As we’ve mentioned before, under the Inheritance (Provision for Family and Dependants) Act 1975, there are certain circumstances in which you can challenge a will in order to obtain a payment from the deceased’s estate – or an increase in the legacy you have been bequeathed. You must have been married to (or have been a partner) of the deceased, a child of the deceased, or dependant on him (or her) and you must prove that you have a reasonable need for financial provision for the court to agree.

The facts in Ilott v Blue Cross and others

The long running case of Ilott v Blue Cross and others, which has recently been concluded in the Supreme Court, looked specifically at the Inheritance Act 1975. It started life as Ilott v Mitson. Heather Ilott had been passed over in her mother’s will in favour of some animal charities, following an estrangement which had occurred many years previously. These fairly straightforward facts have led to a fairly tortuous legal saga, which you can read about here.

At the point where the Supreme Court heard the case, back in December 2016, the Court of Appeal had found in Ms Ilott’s favour a second time and awarded her £143,000 to purchase her house, plus £20,000. The charities appealed.

The Supreme Court Decision

The Supreme Court agreed with the charities, so the original decision now stands and Ms Ilott receives £50,000.  The real importance of the case comes from the guidance the Supreme Court gave in this, the first case where it has dealt with the provisions of the Inheritance Act.

  • It was clear that the mother had not wanted her daughter to benefit from the estate, and the Court of Appeal should have taken this in to account
  • The long estrangement had not been given enough weight by the Court of Appeal – although awards under the Inheritance Act are not designed to punish bad behaviour by a Claimant (or reward good behaviour).
  • Any award under the Inheritance Act 1975 impacts on the bequests to other beneficiaries. In the case of charities, many are reliant on legacies that they receive.
  • ‘Maintenance’ isn’t limited to subsistence level – what a Claimant might need to survive – and does not mean simply providing whatever the Claimant says they need.
  • Maintenance should be the provision of income rather than capital, but the Courts should look at the most appropriate way to provide that, for example in a lump sum which could generate both income and capital.
  • Unless the Claimant is the spouse of the deceased, they will probably need to show a moral claim on the estate, as well as the need for maintenance.
  • The Court has to consider (with evidence) what effect a judgment will have on state benefits, as these are a ‘resource’ available to a Claimant.

Inheritance Act claims in the future

The decision of the Supreme Court doesn’t mean that dependants can no longer claim ‘maintenance’ under the Inheritance Act 1975 – after all, Ms Mitson was granted £50,000. However, successful claims may be harder to prove. The decision of the Supreme Court confirms the importance of the principle of testamentary freedom – the right of an individual to dispose of their property in a will how they choose. As a result, an adult child living independently of the testator will find it much harder to succeed in claiming maintenance if the parent has chosen to disinherit them.

This case is also a valuable lesson in the length of time such disputes can take to resolve if dispute resolution is not used – or is unsuccessful. Ms Ilott brought her original claim in 2007 – so it has taken the best part of 10 years to resolve, not to mention the stress that will have been involved, and the uncertainty. Equally, and perhaps of more concern, we can only imagine the legal costs that will have been involved. If you are thinking of contesting a will, it’s worth considering the possibility of alternative dispute resolution, such as mediation.

If you have been disappointed by the contents of will, get in touch – we can talk through your options, and advise on the next steps should you wish to take the matter further.

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A barrister's wig

Why do I need a barrister to advise on my will dispute?

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Once you’ve engaged a solicitor to represent you in a will dispute, you may be surprised when he or she recommends using a barrister. It won’t always be necessary to use a barrister, but there are plenty of situations that arise when challenging a will (or defending a challenge to a will), when a barrister will provide vital advice both on legal matters and on strategy. In this blog we look at the role of a barrister in more detail, and what they bring to a will dispute, talking to Amy Berry , a barrister specialising in inheritance, wills and probate issues, from Pump Court Chambers.

Expertise

You will have chosen your solicitor on the basis that they are expert in this field. A barrister can add a further layer of expertise, particularly when considering negotiation strategy, or a forthcoming court hearing. As Amy explains,

As specialists in contentious probate, dealing with these issues on a day to day basis and in a variety of different situations, a barrister is in the best position to assess a will dispute objectively, to look for any weaknesses in an argument and to cross check the facts

Independence and Objectivity

As solicitors specialising in contentious probate, we will be involved in the day to day conduct of your case – preparing documents, gathering evidence, writing letters and dealing with the procedure of putting your case together and making sure matters such as deadlines are respected. A barrister will take a step back, and view the matter in the round. Amy continues:

It’s fundamental to understand that barristers are independent. Barristers are usually self-employed, and will be brought in to a will dispute by a solicitor to provide objective and practical advice both on the strength of the case you are bringing or defending, and also in relation to the procedure and strategy that should be followed for the best outcome.

Barristers are also independent of each other – even if we are in the same ‘chambers’. We are governed by strict rules of conduct which means that if there is any question of a conflict of interest, we will not be able to be involved. This can be confusing for people who aren’t used to the way barristers work. You may find that barristers acting for both Claimant and Defendant in a will dispute are from the same chambers – but this does not mean that there is a conflict. Even more often you have a mediator from the same set as a barrister representing a party in the mediation. There is no conflict in such situations and no reason to be alarmed. There will only be a conflict if those barristers have discussed one side of the case between themselves and after that one takes the brief for the other side with knowledge that they would not have but for those discussions – and the rules of conduct and our independence means that this should not happen.

Assessment of the case

Once we have gathered together all the evidence and perhaps engaged in some initial negotiation with the solicitors acting for the other side in the will dispute, a barrister’s objectivity is often indispensable for making a realistic assessment of the claim and the likelihood of it succeeding if the matter was to be heard by a judge in court.

Barristers are not only experts in the areas of law they specialise in, they are also trained in court procedure and are experts in assessing practical matters that can strengthen – and perhaps more importantly weaken – a claim, or defence in a will dispute.

Although I will probably have had the papers in a case beforehand, quite often, I will meet a Claimant or Defendant in a will dispute for the first time at a mediation or at court. At this point, my job will be to look at practical aspects of the case and explain these to the client. I can sometimes suggest a different way of looking at a dispute, or a possible outcome; for example, tax benefits from reaching a negotiated settlement through mediation which might not be available should a matter reach the courts. A solicitor may have been able to discuss these with a client, however, barristers will often have more experience of solutions which have been reached in other situations.

Finally, when a barrister is involved at a mediation stage, or brought in to a case in preparation for a court hearing, they will be assessing the personalities involved and how they may react in a court room situation. One of the benefits of mediation is that it avoids the need for the confrontation of a court hearing which may cause huge amounts of stress to parties or to the witnesses which may have a bearing on the outcome of the case.

Bringing a legal claim to challenge a will can be a complicated process which is why we always recommend using a specialist solicitor to manage your claim. However, in many cases, the additional legal services of a barrister will be vital in the successful resolution of your claim.

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take independent legal advice to avoid a challenge to your will later on

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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