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Why pair Wills & Estate Planning with Mediation?

I have a background of working in both the NHS and the legal profession as well as marketing in the City (of London) so I am familiar with the environments, their structures and personalities.  In addition to being an Accredited Mediator with the Society of Mediators for Civil and Commercial Mediation, 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 the participants may feel they can build trust to work with.

Mediation aims to enable you to overcome the obstacles that are preventing you from reaching your goals.  Mediation skills can be used for each of our planning services if needed, to work toward completion of your wishes.  Mediation aims to overcome conflict and achieve agreement with the minimum of costs, time, consequences and damage.  It can provide great relief.  It has nothing to do with courts, lawyers and arbitration if you do not wish it to.  There are no rulings, judgements or looking back, it aims to focus on steps forward.  It is a non judgemental space to faciliate what you are aiming for.

It is an informal gathering in a structured, safe and calm space that is completely confidential no matter who has referred or asked for the mediation.

Mediations around inheritance disputes may deal with:

- disputes regarding other Wills or codicils

- claims under the Inheritance (Provisions for Family and Dependants) Act 1976, which if you are involved with, you will know are quite specific and limited

- claims of fraud / coercian / invalid procedures

- allegations regarding mental incapacity

- disputes surrounding powers of attorney and executors

- negligently drafted Wills

As also described elsewhere on this site, we can work with you to agree the terms of a Will or other planning or decisions, perhaps with family members.  The aim may be to reduce the risk of disputes after a death or to avoid the burden of all decision making falling onto one person.

 

You may find not all lawyers are open to the mediation process as it is not always fully understood although this is changing.  Some are also engaging in their own versions calling it ADR (alternative dispute resolution) and are developing their own specialist niches.  Independent mediation follows rules and guidelines, so there is no need to be concerned as it cannot harm legal proceedings, in fact it is much more likely to help, even if you are in the middle of proceedings.  However, a judge may decide you have missed the opportunity and it is too late so you are very much enouraged to consider mediation as early as you can.  It can shorten the length of time spent dealing with the legal processes and thereby significantly reduce costs.  In many cases lawyers recognise that at some point during the legal process, it is a good idea to consider mediation to move things forward or reach a settlement and in some areas is has now become mandatory. It is believed that it will be increasingly mandatory and this continues to grow alongside an expectation from the courts that it has been tried first.  What is known, is that bringing yourself voluntarily to mediation is likely to have much higher results that a mandatory being forced into it.  Independent mediators can work with you and your lawyers if needed, and with whichever parties you require, dependent on where you are at and what is required.

A lawyer working on your case cannot also do your mediation as no information gleaned through mediation can be used in court so a lawyer working on your current legal proceedings cannot usually be involved or present.  However, as everything discussed is strictly confidential they can be asked to sign a confidentiality agreement.  Please consult with us as to what it is you wish to achieve from the mediation and thus the format you would like.  The resulting agreement can be simply made between yourselves and signed, or turned into a formal legal agreement if you wish and lawyers can sometimes be present at that stage, or available through telephone and email to aid with that.

A lawyer who also acts as a mediator is not a mediator that no longer thinks as a lawyer. So it really depends on what you need your mediation to achieve.  In other words there is no benefit to the client to have a mediator that is also a lawyer unless that is the point of the mediation, in that an independent mediator may not advise or direct on the law, or influence and steer the mediation.  However, again there are variants on that, and your lawyers may organise a mediation accordingly. 

What is your mediation trying to achieve?  In a civil, commercial mediation and other types of mediation, it can be considered an advantage to have a mediator that is able to remain objective and focussed on the mediation itself rather than the subject, and guide you through the process to reach a satisfactory agreement.  However, it is increasingly common for engineers, architects, lawyers and so on, who have become independent mediators, to focus on their field of expertise as they can understand the difficulties which may make them more understanding in their questioning.  This is understandable, as we find working in this field of Wills & Probate for example, gives us insight and understanding for the mediation and type of questions we would formulate.  It simply illustrates, that many people can utilise the successful medium of mediation.  Our wide skill set, can apply to many situations.  You may agree an agenda or terms independently, or with your lawyer beforehand and/or have your lawyer on hand at the point agreement is reached, but nothing discussed within that mediation may be shared as its confidential/without prejudice.  In addition, the style of mediation that is working towards settling a particular grievance or financial settlement for example, you may indeed wish to have your lawyers available at a particular point for example, to aid with the anticipated point of settlement.  As you can see, mediation is flexible enough to encompass various types of mediation for various needs.  So please discuss your needs with us and we will work with your requirements.

An indpendent mediator is required to spend a good deal of time in debriefing after every mediation and regularly throughout their year, to continually assess their values, judgements and biases in relation to each mediation.  This will enable the mediator to remain as neutral as possible and ensure growth.  It is important to a mediator that all participants feel they can build trust with them.  An independent Mediator focuses on continually developing their role and skillset.

The agreement is not legally binding until it is written by both parties and signed (and a lawyer may assist with this if you wish and may formalise the agreement afterwards) and this can be drawn up at the time.  The mediator cannot draw it up for you (although there are different types of mediation where this may be requested).  It is often because of this process that participants remain committed to the process and reach full successful agreements that are lasting.  Sometimes, if a mediation fails to actually reach this point of agreement or other issues arise later, it can often be a catalyst for the participants to carry on to finalise an agreement afterwards or continue to successfully problem solve.

It is not considered good practice for the same legal practice who has your legal matter to be involved in your mediation as no information gathered in the mediation may be used for legal proceedings, again depending on circumstances for the mediation.  So, they may recommend independent mediators to you.  A mediator or co-mediators will then be jointly appointed by agreement of the participants.

Mediation can apply to many walks of life where there are disagreements and disputes and you can ask us to help you to organise.  There may be:

- problems in the workplace

- employment issues/claims

- negligence claims

- range of family matters

- contract disputes

- range of community disputes

- personal injury claims

- requests to mediate being ignored where the other person inherently retains a more powerful position such as a professional advisor, employer, large organisation

Unlike often protracted legal negotiations, mediation can create a pause in time.  Sometimes there is an impasse and things are going nowhere except rising costs, time and stress.  Considering mediation, can be to take a step back, to consider what you want at the end of it all and formulate what you want to lay on the table to see the matter finished.  It gives you a definite start and definite end.  This means the process is relatively quick.  A matter which has already taken two years of your life can be settled in one day.  That also means the costs are fixed and considerably cheaper than legal fees.  If this was not properly considered before court proceedings, the court judge may well award significant costs against you.  It also gives a high probability of at least good progress in your matter.  It does after all have at least an 85% to 95% success rate.

 

There are situations where it may not be suitable or appropriate.  Of course this is not common but the courts do recognise the possibility of prejudicing a case.  We will listen as you may need to take further advice if we think this is the case.  For example, you may have to seek advice from your lawyer to check it is advisable, for example if you have a particularly strong case, next to no risk of losing, your court costs will be against the other party and costs are not racking up getting there.  This is not usual to be so certain, but it is possible especially if certain legal tactics are in play.  You may want to mediate in order to see an end to a matter.  If there are good reasons why you cannot face sitting with the other party such as a history of abusive behaviour from a party, there are mechanisms that can be employed to help you do that. Whilst we do encourage a full meeting "around the table" we do also recognise there are genuine difficulties in some cases.

Unique "Request to Mediate" Service

Have you been asked by another if you will mediate?  Are you unsure about neutrality and the process?   Are you reluctant to use their mediator?  Are you reluctant to mediate at all?  Do you have an unsupportive solicitor or organisation?  There are many reasons why you may shy away from mediation.

We aim to explain the process and any questions you have in order for you decide whether you should go ahead or how to organise a mediation.  Being fully informed of what you are agreeing to can often help you feel empowered and in control.

It is not uncommon that one party is reluctantly agreeing to a request to mediate or considers it weakens their position in some way to agree to it.  This is usually not the case at all.

Sometimes there is tremendous hurt and anger involved, prolonged distress and the last thing you want to do is sit and talk, but nonetheless may agree to mediate in the hopes the matter comes to an end.  We appreciate that to then agree to mediate with us puts a lot of trust into relying on us to make this a safe space for you to explore how a resolution may be found.  This can make you feel as if you are starting on a back foot if you are walking "blind" into the mediation.  We aim to reassure you that a mediation favours noone and provides each of you with a safe space to talk confidentially individually, and within a group setting where each person is equally heard and listened to.

Call us and we will explain the process as a free service.  You may also ask us to co-mediate.  It is common for two mediators to jointly mediate so we will be happy to see if we can work with another mediator if this is what you prefer.

We will add a note that as mediation is becoming mandatory in some circumstances now, it is likely to be much more successful on a number of levels if the process is entered into on a voluntary mindset making it easier for you to commit to the process.

Here is an important point when agreeing to mediate : Whichever side approaches us first DOES NOT get favour.  The point of a mediator is neutrality, impartiality and confidentiality.  Bills are paid by both parties (unless agreed otherwise).  The invited second participant has complete equality, gets an equal voice and is guaranteed to be heard.  A mediator is appointed jointly by the participants.  If there is an instigator there is no imbalance of power.  The aim is to achieve agreed resolutions for both participants.  Both parties retain full control.   It aims to remove the risk inherent in court proceedings of a case going aginst you, and to arrive at a solution all parties can live with.  There are now a number of precedents in inheritances disputes where the courts will ask if mediation has been attempted with significants costs awarded against a party who refused. 

 

For a matter that threatens to become a long protracted process, or court is looming, or has already taken a very long time, it can make enormous sense financially, emotionally and for many other reasons.  Difficult and distressing issues can take over your life so finalising a matter, within a day, can in itself be priceless. 

Mediation can apply to many walks of life where there are disagreements and disputes.  There may be:

- problems in the workplace

- negligence claims

- range of family matters

- contract disputes

- range of community disputes

- personal injury claims

- requests to mediate being ignored where the other person inherently retains a more powerful position such as a professional advisor, employer, large organisation

It often makes good business and/or financial sense to hold a mediation to minimise costs, remove the lengthy delays of getting into court and then the court proceedings, plus the stress.  In an organisation, managing a problem can create significant strains on effectiveness, productivity, resources and success. 

Please discuss your needs with us and we will guide you to your way forward.

Is it ever ok to refuse mediation?

Mediation Resolution Centre

Be in control.  Be Certain

Trained by and Member of both Society of Wills Writers and Estate Planners & Society of  Mediators

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