Mediation. The Facts.
What is mediation?
Mediation is a form of alternative dispute resolution. It involves the use of an entirely neutral mediator. It is best if the mediator is a specialist in inheritance disputes, and not just a general mediator. It is common for barristers to also be qualified mediators.
Where does it take place?
Traditionally, mediations took place at a law firm, barrister’s chambers, or a neutral venue such as a hotel with meeting rooms. However, as a result of Covid 19 and advances in digital communication, parties began to hold remote mediations, by way of Zoom, Teams or other platforms. Many parties still choose to hold remote mediations.
Which is better, remote or in person?
Neither and both! Whichever works best for the parties, puts them at ease and enables their Solicitor to advise them effectively. Sometimes there might be a “hybrid” mediation where some parties are at home, and others are together with their Solicitor in an office.
How does it work?
The parties to the dispute (unless they are represented by the same Solicitor) will remain in separate rooms throughout the day, either a physical room or a virtual room. The mediator will shuttle between the “rooms” throughout the day with the aim of narrowing the issues in dispute and ultimately guiding the parties towards a binding settlement which they can live with.
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Will I have to see the other parties?
No, not if you don’t want to. Occasionally, parties will ask to meet, perhaps to try and rebuild relationships at the end of the day and after a settlement is reached, however this is not compulsory. Sometimes there will be a “Solicitors only” meeting between Solicitors, if the mediator believes that would assist in reaching a settlement.
How long will it last?
The core mediation hours are usually 9am – 6pm, however they often run into the evening and even into the early hours. Limiting the time to a day helps to focus the mind, and keep costs proportionate. If it’s clear that the parties are too far apart for a settlement to be achievable, the mediation may finish long before 6pm.
Will a settlement be reached?
We find that around 80-90% of cases which reach mediation settle, however a further 5% tend to settle in the following weeks and 5% end up at a trial.
Do I have to mediate if the other parties have suggested it?
Paragraph 8 of the Civil Procedure Rules, Practice Direction on Pre- Action Conduct and Protocol places a burden on parties to consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings. Any party who unreasonably refuses to engage in mediation could face adverse cost consequences if the matter proceeds to a trial (adverse costs consequences means an Order requiring one party to pay the other party’s legal costs).
Why can’t my Solicitor just attend a “round table meeting” with the other parties Solicitors?
They can, however in our experience, the use of an independent mediator makes it far more likely that the parties will reach a settlement. Parties, and even their Solicitors can become intransigent, holding a firm opinion about the strengths of their position, which can be difficult to depart from. A mediator will objectively consider and communicate to all parties how the claim might play out in court, and the risks they face in going to a trial which can be invaluable in unlocking matters.
I’m an Executor, do I have to attend?
If you are an Executor who is not a party to the claim other than in your role as Executor, then you will not usually need to attend, however you will likely still need to take legal advice on your position. This is because you will need to consent to the terms of settlement reached, so would need to be contactable on the day, and able to give instructions to the person representing you. The settlement terms will often require the Executor to actively carry out the terms of settlement, so it is important that you are properly advised throughout the process even if not physically attending.
Can I attend a mediation without a Solicitor?
Whilst technically you can, we strongly recommend that all parties take their own, specialist, legal advice. Having a Litigant in Person at a mediation slows the process down and makes it less likely that a binding settlement will be reached. There is also a danger that you could agree to something which is not in your best interests.
Who makes the first offer?
There is no set rule on this. The mediator will guide the parties, sometimes depending on what offers (if any) have been made previously.
Will the Court know about offers which have been made at mediation?
No, offers made at a mediation cannot be referred to the Court when a decision is made as to who is responsible for who’s legal costs. However, it is a common tactic for parties to repeat offers made at mediations by way of “without prejudice save as to costs” offers and those would be referred to the Judge when considering costs.
Can I bring my friend along to support me?
Yes, although anyone attending must sign the Mediation Agreement and agree to keep anything discussed confidential.
What if a settlement is reached but someone changes their mind?
Provided a Settlement Agreement is signed by all of the parties to the claim, preferably with a Tomlin Order, it is legally binding, and no one can go back on it. Sometimes the parties are only able to reach “Heads of Terms” if, for example, one of the parties needs to take specialist tax advice on their position before signing a binding agreement. Heads of Terms are not legally binding but show the parties intentions regarding settlement, and this usually results in a binding Settlement being agreed shortly after the mediation.
When is the best time to mediate?
Usually when the parties have exchanged pre-action correspondence and have enough information/documentation to enable their Solicitors to advise them regarding the strengths and weaknesses of their claim. Sometimes this might be after proceedings have been issued and witness statements have been exchanged, other times it might be at a much earlier stage. Each case will turn on it’s own unique facts.
The Contentious Clinic
Did you see the recent Contentious Clinic by IDR Law? Richard Thomas and Sophie Brackenbury explore the world of mediation, sharing their experiences for how to prep for a successful session.
- Why mediate and when?
- It’s all in the preparation
- On the day itself
- Sibling rivalry and the additional difficulties this can bring
The IDR Network is a free referral and support website designed by IDR Law for anyone working within the wills and probate space.
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