"Roses are red
Violets are blue
I like going to Court
So why don't you?"
What follows is a focus on the role of mediation as an alternative to a final Court hearing. Most lawyers enjoy going to court but not all clients will report such positive experiences, even those on the perceived winning side.
At this time of year hopefully our lives are full of thoughts of love.
Valentine's Day is generally seen as a celebration of love and affection. For many, it's an opportunity to express feelings of admiration and gratitude toward romantic partners, friends, and family.
This is not that different from how many see the importance of Wills and Trust instruments, which represent legal mechanisms to benefit the individuals or charities closest to our hearts.
Mediation has long been seen as a tool available to support a failing marriage or relationship. Mediation is also an increasingly recognised manner of effectively resolving trust and probate disputes.
Why after the death of a loved one do people the most closely connected with the deceased so readily fall out and in such a significant way that they think about and action going to Court?
I would venture that for most people after going to Court once they would not choose to go through the experience again. I will confess here I still enjoy little more than a fully fought case at Court ... but that said only when my client's case is successful! It cannot be stressed too highly clients that find themselves in this type of dispute need to have their voice heard and they deserve to be expertly aided through the legal process by professionals. Whether the journey they take is all the way to a final hearing or by the means of a negotiated settlement along the way expert professional guidance is invaluable. Mediation is a tool to bridge the gap.
In my experience for those involved in the process, such as executors, trustees, friends, and family members, the reasons for recourse to litigation in trust and probate matters are often influenced by personal feelings of fairness, entitlement, and the desire to do what's perceived as the right thing. While bitterness may be a factor, emotional motivations and differing views on fairness often play a key role.
The problem is that the Court, when asked to resolve these disputes, is going to come up with a binary answer to whatever question or questions are posed. Even the most inventive of judgments are still pretty inflexible. Add to this the aspects of emotional and/or financial cost that inevitably are a part of the legal process and the outcome at trial is often far from ideal even when all goes to plan for a client or clients.
In one way or another there will be a winner and there will be a loser; and in some cases it can feel that everyone is a loser.
Given the above comments, but obviously only if you buy into them, then it is clear that the role of mediation is quite rightly now seen as regularly the best, or least worst, route to a solution for those facing this sort of legal dispute.
The mediation process brings benefits in terms of contested probate and trust disputes perhaps most significantly in that, if entered into genuinely, mediation offers the chance of bespoke solutions and solutions that not always available to the Judge hearing a case in Court.
You can pick your mediator and your mediator can engage in a more personal manner that a Court case before a judge ever can manage to achieve.
As already indicated, the problem with these disputes is that whilst the law is there to offer a solution to a problem such as "has there been reasonable financial provision" for a partner or spouse or child in a Will that is not necessarily the question that those clients involved are the most adept at objectively answering let alone necessarily the Courts. As already alluded to, it can be that what the family members or friends of the deceased, in the case of say a will dispute, are trying to apply is a concept of rather what they think is fair or what they think, or even know, the deceased wanted. In this the actual legal question and possible answers can get lost.
Ultimately a resolution which both parties are not of the view is ideal but remains one that they can live with, and have been involved in agreeing, is the generally the hallmark of a successful mediation. The relief that a resolution has been reached, which sometimes can be palpably visible, can also be very satisfying to witness.
Having said all of the above mediation is a two way street and mediation can fail as well as succeed and ultimately a win in Court, particularly when you match or exceed what you have considered to be realistic expectations is a feeling that is difficult to beat. Social media is awash with posts from lawyers of successes in Court, quite rightly I am sure in all those cases. At the same time, it is probably worth remembering that for every one of those successes there is a loser. Not every problem can be negotiated, or indeed should be, but mediation can be a very attractive tool for clients to resolve generally more cheaply and speedily the most difficult of cases.
Although not related to will or trust disputes the recent decision in the High Court of DKH Retail and others -v- City Football Group [2024] EWHC 3231 (Ch) shows an increasing recognition and boldness of the Court, that has not always been shown in the past. Here Manchester City Football club was at it's most basic involved in a branding dispute. Manchester City did not wish to go to mediation the other party did. The High Court compelled them to go to mediation Mr Justice Miles making telling comment that experience "shows that bringing parties together through mediation can overcome an entrenched reluctance of parties to negotiate, even where sincere". In a postscript to the judgment it was confirmed that, on 13 January 2025, the parties notified the Court that they had settled their dispute. In the words of Mr Justice Miles, "mediation is capable of cracking even the hardest nuts".
If mediation does not fit the case or is tried and fails then the lawyer should of course dust off their suit and get into Court well prepared and robustly in a position to present their client's or clients case.
My guilty pleasure is trying to read between the lines of how the parties in various High Court reported judgments in this field got there and trying to get a feel for the Court's impression of the individuals before it.
At Herrington Carmichael LLP our team is confident that we can advise on the process and apply the best strategic use of the all the legal tools at our client's disposal, including mediation, to achieve the best outcomes in contested wills and probate disputes.
If you or someone you know needs help or advice in the complex field of contentious trusts and probate, get in touch with the team at Herrington Carmichael LLP. Our top Private Wealth and Inheritance team is also here for all the complex, as well straight forward, non-contentious will, trust and estate administration needs of our clients.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
