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Why Choose Mediation?

Noone goes to court lightly and most legal proceedings are major life events that usually involve trauma and stress.  Inheritance disputes are are no exception and are amongst the most costly, lengthy, stressful and destructive proceedings in the civil courts.  The courts are swamped with the volume of cases, legitimate claims and some not so.  Whatever has driven a person to consult a solicitor, can indicate a last resort and failed attempt at settling a dispute and/or claim or, you may be trying to find out whether you do have a claim.  Funding the proceedings often comes from the disputed inheritance itself meaning that much of the estate can be lost in the battle.  Most solicitors now appreciate the need to include mediation in dispute resolution, some don't.  There is a great loss to everyone in such a legal battle, and one where there is usually a winner and a loser. 

No solicitor involved in your case may participate in this type of mediation, unless it is hybrid style mediation designed to to be part of process.  The impartiality and non legal basis of an independent mediator not linked to legal cases, I would hope gives the client trust in the nature of the mediation process.  All professionals will act in the best interest of their clients and as such should be able to recommend mediation as part of the process if it is suitable.  Some solicitors now try and include mediation as a method to find earlier settlement, albeit in their own form. 

Mediation can be at any stage of the proceedings. (The caveat to that is if you are now in court, the judge may say its too late and no more time can be wasted, which could have a costs penalty.)  If it has not yet been suggested to you, then you are free to ask the opinion of your solicitor and/or consult an independent mediator to see if the matter can go to mediation for resolution of a difficult point or in settlement of a whole matter.  You may ask us for example, to discuss with your solicitor.  For example, a legitimate claim may have been identified or even underway and it would be cost effective and less stressful to reach a settlement through mediation rather than lawyers and courts.  Remember, you are the client and as such you must feel able to explore all options to resolve your dispute. 

 

Please read this article on the court's opinion on whether it is ever reasonable to refuse mediation.  Regarding costs, a half day, one day or more, mediation is a fraction of the bill you will receive from solicitors, barristers and court proceedings especially if court costs are awarded against you. There may be a point at which you decide the matter, or particular point, needs to concluded.  Your mediation can achieve this in one day.  In addition, at an 85-90% success rate at settlement and/or significantly improving the situation, there is little else that can claim that. 

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Sometimes you will be involved in both legal proceedings and a mediation, as indicated above.  If you and your solicitor need you to reach an agreement on a particular point, or the whole matter, in this type of mediation, you can organise for your solicitor to be available for consultation by email or 'phone throughout the process and at the time an agreement is being drawn up.  It may be sent over eg by email, agreed, finalised and signed.  You may wish to do this if you wish to formalise the agreement such as with a court order.  It's quite a bonus if protracted large costs can be replaced with a one off mediation fee.

 

Mediation provides a unique safe environment.  Nothing said or revealed within a mediation may be shared or discussed outside the mediation.  It cannot be used to inform solicitors and their legal or court proceedings.  The same applies to any organisation that has referred or requested it.  This is to keep the clients safe from information being gathered to be used against them in litigation or in any other way.  This gives a participant the knowledge it is safe because it is confidential, neutral and impartial.  Nothing may be recorded or written down and kept.  At the conclusion of a mediation, it is common that an agreement is reached and recorded by the participants.  Sometimes this agreement is sent to the solicitor and if desired it can then be used to form a Court Order.  If this is the case, the solicitor can be on standby at the end of a phone/computer to facilitate this.  Otherwise, an agreement can be drawn up by the participants and signed if you like.  This clarity and investment in an agreement created amongst yourseloften means there is a lasting resolution.  There is no reason why another follow through mediation cannot take place if you wish it.  During a mediation, anyone can ask for a break.  This may be to consult with their solicitor or advisor or simply to have a break or refreshments.  This process therefore, can be phenominally faster and more cost effective, as well as considerably less stressful than protracted legal proceedings with letters, meetings, documents and court dates with the knowledge of a high likelihood of some form of agreement by the end of it.  If the going gets tough during the mediation, these are things you can fall back on to encourage you to keep going. 

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A mediation need not have any legal aspect to it and is a safe space for each person to have a voice and be heard.  It is not a court room with lots of papers, which aims for a win lose situation, or where judgements or opinions are given, it is a space where all possible options to settle can be heard.  Courts can only make judgements based on the law so very often their rulings are limited and not always equitable.  So much so, judges overseeing such disputes have stated during proceedings that everyone go into mediation before the whole estate falls victim to the costs and all family relations are destroyed.  It cannot be ordered, but penalties can be given where it did not take place. They will want to know if mediation was offered or why it might have been refused and can award costs against you if you have not tried.  This is a strong indicator that the courts want you and solicitors to include mediation in the process before it gets to them.  So, please always bring it up with your solicitor that you would like to use mediation where possible.  We are always here to discuss whether you think it might help.

Mediators are trained not to have to be specialists, however ...

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It may be useful for a Mediator to be familiar with the environment or subject matter requiring a mediation as it may help the Mediator create open questions toward a resolution, that are appropriate and sensitive.  However, at the very same time it may also not be, given that the mediator must remain neutral and impartial at all times and is trained and continues to train, to ensure this.  The Mediator is trained to ask open, neutral questions without bringing in any personal bias that apply to all situations and so understanding very little of the subject can be a huge benefit so as to avoid steering the Mediation.  No matter how unintentional, bias is within a person as it bores deep into our values.  For these reasons a Mediator will undergo a debrief after each mediation to look at the undoubted challenge on values, sympathies, morals and the wide range of factors that make us into who we are.  It is a constant pathway of self evaluation and growth that is necessary to be the best Mediator for you.  As such, a independent Mediator's skill set is designed to encompass all types of mediation, in all types of arenas.  Each Mediator will find the areas they prefer to work in and become familiar with as they find their abilities and talents fit well into certain areas and conversely there will be certain areas an individual may prefer not to work in.  A mediator will work to give each participant an equal voice, to have their experiences heard and addressed and attempt to facilitate movement and breakthroughs in what can seemingly be intractable situations.  It is important to the Mediator that the Mediation experience provides not only steps toward resolution, but also the possibility of closure and healing and allows the participants to walk away feeling better and different to when they came in.  Whilst this process can be challenging for a whole host of reasons and fraught with a variety of emotions we hope that you can trust us with the process and structure that is used to handle that, and accept the assurances that we do not give any participant additional power or influence.  So no matter who instigated or organised the mediation, the content of the mediation remains in the room and stays confidential. We will not share it, even where a report may be required after the mediation.  That will only contain what has been agreed with your permission. It is essential every participant feels safe and on an equal footing. We remain independent and neutral.

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I have a background of working in both the NHS and the legal profession so I am familiar with both environments, their structures and personalities.  In addition I am also an Accredited Community Mediator.  My experience lends itself to an understanding and sensitivity that is useful in the types of mediation I offer as well as offering a mediator that all the participants can feel they can trust and work with.

 

Our experience and preferences and our life and work experience transfer into a number of areas as a mediator.  Our training covers a number of subjects such as employment disputes or claims, hospital negligence claims, contract disputes and claims, community disputes, inheritance disputes and claims, intergenerational matters and workplace problems.  Please do contact us to see if we can help.

Mediators cannot take sides.  They are there to facilitate everyone having a voice and to be heard and to help you reach resolution.  They cannot make judgements or give opinions, they must always remain neutral and impartial.  (There are certain types of mediation where this can be arranged). That is a position that anyone undertaking mediation can be assured of.  They must provide you with a neutral environment, equal time to talk and express yourself and provide a structured open process designed to facilitate you moving you forward.

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Mediation can remove fuel from the fire and give everyone the opportunity to be heard with the hopes of drawing a line.  Do people get angry and upset?  Sometimes and sometimes that is the process that has to be gone through to dissipate the fire.  It is your meeting.  However, there are one or two rules along with with guidelines and requests that are given at the beginning of every mediation so everyone knows where they are, but the clients always remain in control.  It is as informal a process as possible.  If a person has good reason not to want to be in the same room as another, this is recognised and acknowledged and there are mediation styles that can facilitate that too.  Zoom is a particularly good method for that. 

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Mediations are an informal meeting with structure which can take place around a table, or a meeting via zoom which is surprisingly successful.  Please feel comfortable to consult us about what you want from your mediation and whether we can help.

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You may have consulted your legal professional about the validity of legal action and what steps can be taken to resolve the situation and the lawyer may confirm that legal steps are possible.  It is at this point the issue of costs and lengthy stress will be discussed.  It is also at this point you could ask whether mediation would be a better route, now that there is the possibility of legal proceedings or if proceedings have already begun.  You may ask your lawyer for clarity on what legal steps there are to be taken and the overall cost and time and what could be agreed at a mediation.  This information is often all that is needed to persuade all concerned that mediation is the preferable route.  You can ask us to liaise with both lawyers to help facilitate if you wish.  You may consult with your solicitor during or at the end of a mediation to agree terms of a settlement which can be drawn up and signed (we have done this all by zoom and email).  If the lawyer advises, this may then be turned into a court order.  You may discuss with us the form you wish your mediation to take.

In conclusion, we ask once again, why choose Mediation for this type of dispute?  The answer must be, after reading this page, you decide.  Is there a better way?

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To be more informed, perhaps read this article below.  Where there is such an increase in these types of claims and the complexities of why they are arising, there must surely also be a rise in the stress and suffering in how it is affecting people's lives.  Legal proceedings, on their own separate from mediation, are a limited and often unsatisfactory solution.  Mediation has proven itself to be a significant force, between individuals, and even countries at war, in providing interim or full resolutions, to the extent that in certain situations it has become mandatory (eg small claims) and no doubt will continue to increase.  From the point of view of families living in the modern world today, it emphasises the obvious need for proper planning and putting your house in order when it comes to your Will, taking care to manage your property as well as protecting the people nearest to you, as the article below highlights.

Inheritance disputes surge amidst complex family dynamics

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Court cases over wills have seen a significant rise, with instances increasing by over 34% in the last five years and more than 140% in the past decade, as reported by The Times.

Recent statistics indicate a surge to 195 inheritance disputes last year from 145 in 2017, underlining the growing tension in estate allocations. Experts believe these numbers represent just a fraction of actual disagreements, as many disputes never reach the courtroom.

The recent research by the law firm Private Client Solicitors has found that legal action brought by individuals wanting a share of assets left by loved ones has increased by nearly 50% in the last five years. Partner Nicola Walker has described how the effect of higher house prices on estates had been a major factor.

She said that although many claims were genuine and from cohabitees unable to automatically inherit the assets of partners who had died, many more were brought by “opportunistic” individuals. Mrs Walker added that court records only showed the “tip of the iceberg”. She continued:

“Those people who feel that they haven’t been adequately provided for by a love one’s will are fully entitled under the law to question the terms of that document. Quite often, we see unmarried men and women who were previously unaware of the need to make a formal claim in order to be entitled to assets left behind by their partners.

Complex family structures involving remarriage also frequently give rise to cases of this nature. Even though the number of such disputes making it to court has reached a level never seen before, it’s worth remembering that the vast majority of these issues don’t get that far.

The costs of challenging a demand come from estates themselves, meaning that executors generally don’t want the costs or the uncertainty of lengthy legal action.”

Mrs Walker outlined how the increase over the course of the last decade – up 143% on the figure for 2012 – was even more pronounced. Under current legislation – the Inheritance (Provision for Family and Dependents) Act 1975 – individuals who cohabit do not have the same rights when it comes to inheritance as those who marry or enter into a civil partnership.

Instead, they are required to make a legal claim demonstrating why they should receive “reasonable financial provision”. In 2011, the Law Commission recommended that cohabitees who had lived for at least five years with partners who had died should be allowed to claim a share of their late partner’s estate without having to go to court.

When the proposal was rejected by the then coalition Government, the Commission warned that a continued rise in cohabitation would make arguments for legislative reform “more pressing over time”. Mrs Walker explained that the family home accounted for the single most valuable asset in many client estates.

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In August, the Office for National Statistics (ONS) released data showing that the average house price in November 2022 was £292,674 – a rise of more than £46,000 on the figure for the same month in 2020. Mrs Walker described how the frequency of inheritance disputes underlined the importance of trying to anticipate possible claims before wills were made. She continued:

“It is always better to determine whether there may be a challenge before a will is made and someone dies.

Dealing with a claim can be deeply upsetting to families and really compound the sense of loss.”

What’s more, recent high-profile cases, such as a £100 million inheritance dispute involving a Russian tycoon’s estate, have brought these issues to the forefront. Complex family relations, including those involving stepfamilies and remarriages, are frequently cited as factors contributing to the rise in litigation. Moreover, an increase in property values has made estate assets more contentious, with homes often being the most valuable asset.

 

Legal professionals note a mix of legitimate grievances and opportunistic claims driving the rise in will challenges. They also highlight increased awareness among unmarried couples about their rights to claim estate assets. Despite the uptick in court cases, most disputes are settled outside of court, often to avoid prolonging the emotional distress associated with drawn-out legal battles.

As the debate around inheritance continues to evolve, proposals and discussions around inheritance tax reform are gaining traction in political circles, reflecting the growing public and political interest in how estates are allocated and taxed.

This comes as Prime Minister Rishi Sunak has recently contemplated significant tax revisions, including a possible elimination of inheritance tax, as part of a broader plan to increase the Conservative Party’s appeal ahead of the forthcoming elections.

The Treasury have confirmed that the Chancellor, Jeremy Hunt will deliver the 2024 Spring Budget on 6th March.

Today’s Wills & Probate was launched in October 2014 with the intention of informing will writers, probate practitioners and estate planners about the changes that are happening in their market. It is now one of the leading sources of information for wills and probate professionals in England and Wales

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