WHAT IS A MEDIATION (IN WILL CONTEST CLAIMS)?
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. In will dispute or will contest claims, he or she is usually a legal professional (most often a Barrister with experience in the will dispute field), who is paid by each side to act as an independent facilitator.
2. What happens if I can’t afford to pay for one?
If you obtain ATE insurance (insurance which protects against the risk of losing and thereby paying the other side’s costs), the mediator’s fees will be covered by this insurance. In addition, it will always be possible to obtain a loan to support your claim. In certain circumstances we will meet this cost for you.
In general, where we advise you to go ahead with a mediation in a will contest claim, you should do so. Firstly, it will avoid criticism by the court if at the end of your claim you have failed to engage in a mediation…..which could in fact lead to a costs order against you even if you win! Secondly, we will only advise on a mediation where there is a good chance of success in which regard 90% of our mediations lead to a resolution of the will dispute claim.
3. What usually happens in the mediation? Do I have to meet the other party?
You do not have to meet the other party if you do not want to!! However, some mediators will regard this as important (but nevertheless will listen and act on your views). It really depends on the case.
In general, each “team” at the mediation will have its own room. The mediator will shuttle between rooms taking messages, offers and responses. He may also canvass one team on a particular aspect of its case which requires further explanation or clarification.
The mediation will usually start with the mediator explaining what he will do and that he cannot act as Judge. He is also likely to tell each side that whatever is said at the mediation stays confidential to it.
It may be the case that each side decides in conjunction with the mediator that a formal round table meeting is necessary and/or advantageous, so that each side can explain their position. This probably occurs in about 50% of cases. Other than to say your name, you are unlikely to be asked to speak where, for example, we are representing you.
This round table meeting will last perhaps 40 minutes and then each team retires to their own rooms.
Unlike court hearings, there are no rules governing what each party does in the mediation – except there is a mediation agreement which will bind the parties contractually, the most important aspect of which is the complete confidentiality of the mediation process – even a court cannot be told what has happened.
This can lead to interesting evidential revelations, to include one mediation where the other side produced a video of our client without notice, claiming that it showed she was much healthier than had been maintained! A mediation can also be used to “hot tub” expert or lay witness evidence (in other words to call and allow that witness to be cross examined but in a neutral environment) although this is rare in will contest cases and is certainly not our experience. It is only likely to work where each party has been fully canvassed about it and agreed to it.
4. How long does the mediation last in Will contest claims?
In general they will last a day so be prepared for the long haul! In some cases, in particular where a settlement has not been possible, but the distance between the parties has been narrowed; the parties might agree to the mediation being kept open but by correspondence and/or to a further mediation meeting at a point in the future after more evidence or fact gathering has occurred.
In short, it is an extremely flexible as well as surprisingly effective process.
5. Is the agreement or settlement concluded at the mediation?
In general terms yes! In fact we had one where the agreement took just as long to draft as the actual settlement discussions, leading to an eventual conclusion at midnight! Thank fully this has only happened once.
6. Finally, 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.