The Ministry of Justice will soon launch a consultation on mandatory mediation in suitable low-level family court cases (not including those with any allegations or history of domestic violence). Mediation can indeed be a great tool, particularly in resolving family issues in the widest sense.
It is not just that they are cheaper, quicker, confidential, voluntary (for now), non-coercive and, most importantly, flexible, but with the right skilled, innovative, knowledgeable and experienced mediator, they get the job done and in fact can and should be used for all and any disputes.
Similar but different
Mediation can be very a useful tool when it comes to settling disputes over the estate of a deceased family member where the permutations are almost endless.
For example, in circumstances where siblings and children of the deceased are unhappy with the surviving parent’s estate, or where a son and former partner of a deceased son/brother have issues with the latest will where one is excluded, mediation can be invaluable.
In both of these circumstances, the relationship between the parties had entirely broken down and could neither be resurrected nor preserved, but with the help of mediation a clean break was effected in both cases, which was best for all. In some cases, mediation (rather than court proceedings) can help preserve family relationships – particularly if taken early enough.
In one case, a net estate may be relatively small, but in another, far more sizeable. Mediation really does suit all sizes of case.
In both, any settlement agreed can include the passing over of items of no financial value at all but of huge emotional significance to one or other of the parties.
In one, there may be arguments about undue influence/coercive control and in the other, claims based on proprietary estoppel and issues of capacity.
All and any issues can be dealt with through mediation.
How flexible is mediation?
Mediation is extremely flexible in many ways including time, place, format and mediator – none of which are available to choose in court proceedings. The family can choose the mediator instead of being given a judge – who may not be the same one at different stages of the process – and they can help fashion the outcome rather than having a decision imposed on them which no-one is happy with.
It also has the flexibility of being carried out virtually or in person. Both can work well and as to which is better in any circumstances, it will depend on the particular facts of the case including the location of the parties (virtual is better if everyone is a long distance apart), availability of the right mediator and timings. Flexibility and innovation are key so that, for example, in-person mediation can work well even where parties do not want to be in the same room, as can often be the case with family disputes.
Choosing the right mediator
When choosing the mediator in any family dispute, considerations should be given to the person’s relevant experience, availability, and reviews, both online and from colleagues. Timing can be critical, particularly if you have court conference dates or hearings approaching, in which case availability may be key. Mediation and court proceedings can go along in tandem; one does not exclude the other and indeed in one of examples outlined above, proceedings had been issued and a date for a costs and case management conference set. The real issue then became legal costs which were soon to become disproportionate to the value of the claim against the estate but, with the right mediator, the matter was settled without further significant costs being incurred.
Getting the job done
An adversarial trial is not the best way to settle a family dispute, particularly a contested probate where the “pot”, i.e. the value of the net estate, is finite.
The value of having certainty should not be underestimated, nor should the risks of embarking upon court litigation. Also, the flexibility of being able to include in any settlement stuff that a court simply could not order is invaluable, particularly to the client.
If you have questions about using mediation in a family dispute, particularly a contested probate, please contact Annabel Clark.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.