CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – THE BENEFITS OF MEDIATION
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss the benefits of mediation
What is Mediation?
Mediation is a negotiation utilising the services of a trained Mediator (who may or may not be legally qualified) within a structured environment to help the parties to a dispute, in this instance a Will dispute or Will contest, to attempt to resolve it. It is usually voluntary in the sense that neither party can be forced by the Mediator to settle; nevertheless it is becoming close to mandatory in these and other types of disputes.
So for example:
– the Mediator does not make rulings or Judgments in relation to the law and facts of the Will dispute or Will contest claim (in favour of one side or the other)
– he/she does not provide any legal advice at all
– unlike in Court (at a trial) where the key parties to a Will dispute or Will contest claim are likely to be required to give evidence in open Court and can expect to be questioned or cross-examined, it is highly unlikely there will be any direct meetings between them
– in fact the structured environment of the Mediation means that there are unlikely to be any direct meetings at all simply because each side or team will have their own rooms (which can often now be virtual with the Mediation delivered virtually and equally effectively) and are kept away from each other
– the Mediator acting like a shuttle diplomat moves between the rooms taking questions, answers and hopefully offers and counter offers
How can a Mediation be successful if there is no Judge to make rulings?
I confess that I was a sceptic too – however the more one deals with Will disputes and Will contest claims the better the process of Mediation appears to be. There seem to be several reasons for this:
– although the Mediator isn’t a Judge and cannot make rulings or findings in favour of one party or another, the process itself is often a way of “hot-housing” certain key issues
[as an example in one claim, it became very clear during the course of the negotiation that the home-made Will witnesses had not confirmed that the near blind testator had read the Will he signed and/or had it read to him, leading to questions as to whether he could have known and approved its contents which is a key requirement of valid Wills – what followed was a substantial settlement in favour of the contesting party]
– it focuses the parties minds on issues which they might not have been directed to consider, affecting their stance in relation to the Will dispute and/or Will contest claim, to include:
(i) the Court might not deliver the sword of truth and justice at the final trial (litigation risk is always at least about 25% – in other words even in the strongest claim there is a one in four chance of losing unexpectedly)
(ii) the substantial delays likely to occur in bringing a claim to a trial (often up to two years – and then there might be an appeal) and the stress (and cost!) associated with living with the claim over the same period, not to mention the trial, might be too much (in one Mediation our client who had a very strong claim in support of the legal validity of a Will, caved in and agreed to a 50:50 split because her husband had been diagnosed with cancer and faced a lengthy treatment battle)
(iii) the realisation that even with a “win” at trial a large percentage of ones own costs (which are often huge – hundreds of thousands) are likely to be found to be irrecoverable from the losing party since the process of taxation (of costs between parties – often an expensive, risky and protracted process itself) will always lead to substantial reductions and further costs
(iv) the loser will not always pay – costs can be ordered to be paid from the estate and/or the parties can be ordered to pay their own costs in certain instances – refer to our earlier blog:
Costs Where Executors Seek to Prove a Will – Will Claim Solicitors
but in particular the cases of Spiers v English [1907] P122 and Kostic v Chaplin [2007] EWHC 2909 (Ch). These raise two exceptions to the normal rule that the loser pays the winners costs. The first of the two exceptions arises from the question of whether the deceased was really the cause of the litigation (in which case the parties costs should be ordered to be paid by the estate). The second is where the circumstances lead reasonably to an investigation of the matter (in which case no order on costs could be made).
Finally “ADR” (alternative dispute resolution) which often is Mediation (although other forms of negotiation are “ADR” too) is close to mandatory
There can be “costs- sanctions” if you don’t negotiate. We consider this in detail in the following:
There is a general pre-action protocol or instruction if you like from the Courts which govern claims involving disputed or contested Wills and estates and which very clearly requires the parties to engage in ADR or explain why. It is called the “Practice Direction – Pre-Action Conduct and Protocols”:
PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS – Civil Procedure Rules
A large chunk of this Practice Direction is taken up directing the parties towards ADR. For instance:
Settlement and ADR
8. Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
9. Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued.
10. Parties may negotiate to settle a dispute or may use a form of ADR including—
(a) mediation, a third party facilitating a resolution;
(b) arbitration, a third party deciding the dispute;
(c) early neutral evaluation, a third party giving an informed opinion on the dispute; and
(d) Ombudsmen schemes.
(Information on mediation and other forms of ADR is available in the Jackson ADR Handbook (available from Oxford University Press) or at— https://www.gov.uk/guidance/a-guide-to-civil-mediation
11. If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
Where there has been no or insufficient attention to ADR, the Court can and will in certain instances order either a Mediation or its own form of Mediation (called an “ENE” or early neutral evaluation) which we will discuss further in our next blog.
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.
We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.