CONTENTIOUS PROBATE: MEDIATION
The talking cure Probate disputes can be disastrous for already strained family relationships, as well as eating into the value of the estate, potentially leaving nothing for anyone. This is where mediation can help. Phillip Hesketh explains
P Philip Hesketh is a full-time independent mediator at Hesketh Mediation Services (www. probatemediator. co.uk) and a nonpractising solicitor
In digest Mediation can help where the family has reached an impasse, and where emotional factors are complicating the situation Mediation can be a challenging process and is not appropriate in every case, but is an option where the client wants to settle and negotiations have stalled
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robate disputes occur when each side perceives that its cause is right and just. Party A ‘knows’ that her mother knew exactly what she was doing when she altered her will to exclude the other party. Party B ‘knows’ that his mother intended her estate to be divided equally between her children, and would never knowingly and willingly have cut one child out. Both sides have experienced lawyers advising them that they have a reasonable chance of success which justifies the litigation. I do not mean to imply any criticism of the legal advisers. Only the judge hears all of the evidence, tested under skilful crossexamination, and so can make a decision based on a view of the whole case, and even judges do not always get it right. Legal advisers have to make do with their own client’s version of the truth, and an assessment of the strengths and weaknesses of the other side’s case. Such disputes can be complicated by emotional factors arising from the relationships and history between the parties. These cloud the objective issues in dispute. The preparation for and issue of legal proceedings are costly, and can become a barrier to resolution. Costs have to be paid by somebody, and the longer the case goes on, the lower the net gain is for the parties as a whole. It becomes more and more difficult to find a solution that is not a win-lose result, and so the court is asked to adjudicate. This is just what has happened in the recent case of Burgess v Hawes (see box, opposite). This is where mediation can come in. Mediation can potentially tackle each and every aspect of the contentious estate, and form a detailed ‘route map’ for the speedy and cost-effective ultimate administration. In the last edition of PS, Richard Roberts emphasised the need to consider the appointment of an independent administrator sooner rather than later, especially where it is abundantly clear that, no matter what occurs, the
parties have such distrust of each other that litigation is inevitable. However, in any sort of probate dispute, there is often a high degree of emotion involved, and moving the administration into the hands of an independent party may be only partially successful, because there could still be issues between family members. These issues are perhaps best tackled at the same time as considering an independent administrator. WHAT MEDIATION IS NOT Mediation is not about judging right and wrong, nor is it a forensic search for the truth to establish which side’s perception of the facts is to be preferred. It is about the parties finding a solution to the problem which is acceptable to them all. Mediation is not a soft option. It involves a very difficult negotiation process with parties entrenched in long-held positions. The idea that it is somehow ‘touchy-feely’ is misguided. It frequently concludes with round after round of haggling, and the mediator must understand how negotiations work to enable him or her to keep a careful watch over the process and prevent it becoming derailed. Mediation is not appropriate in every case. It carries a cost, and I do not recommend it as a matter of course. See below for when it should be used. WHEN TO USE MEDIATION If you have not exchanged offers or explored potential solutions with the other side, you should do so before considering mediation. The right time to mediate is when the following three conditions apply: your client wants to settle the claim; you have enough information to negotiate a settlement; and, importantly, negotiations have stalled (that is, when both parties’ last offers have been rejected, and neither is prepared to make a new offer). In Jarrom and Shepherd v Sellars  EWHC 1366 (Ch), the court varied the usual order for costs as set out in Civil Procedure Rule 44.3(2) by making no order for costs where the successful party had refused repeated offers for without-prejudice discussions to explore resolution of the matter. This extended the possibility of costs sanctions for unreasonable refusal to mediate, set out in the authority of Halsey v Milton Keynes General NHS Trust  1 WLR, to other methods of alternative dispute resolution. Mediation can also offer the opportunity for a solution that works for everyone when emotions are at the fore – communications between the parties have ceased, your client has unrealistic expectations of the outcome, or one party has a need for some form of acknowledgment
Lawyers can call upon the assistance of mediators in expectations in a way which will not damage their relationship with their client
PS January 2013
have long since been replaced by letters through solicitors. Parties to disputes sometimes have unrealistic expectations. Lawyers can call upon the assistance of mediators in private sessions to help reality-test those HOW MEDIATION WORKS expectations in a way which will not Mediations can be arranged at very short notice, subject to everyone’s damage their relationship with their client. availability. You should be able to arrange a mediation within a few weeks Private sessions are also the place to of the parties agreeing to the idea. Obviously, the mediator will need to regroup and consider any new information be brought up to speed on the history of the dispute, but mediators tend revealed in the meditation which may not to want to see full trial bundles, as they are not going to be making a impact on the determination. negotiation What is acceptable Burgess v Hawes strategy. They to the parties depends are the arena largely on what they In 1996, Daphne Burgess made a will dividing her estate equally for careful want, and establishing between her three children, Julia, Libby and Peter. In January 2007, consideration this is one of the most aged 78, she made a new will excluding Peter, in the presence of of alternatives important features of Julia and a solicitor. She died in May 2009, and Libby and Peter to resolving the process. Mediators contested the will on the grounds of lack of testamentary capacity attempt to distinguish and of want of knowledge and approval. In the county court, Judge the dispute at between positions and Karen Walden-Smith accepted their claim, ruled the will invalid, and the mediation. Mediators will interests. One party’s ordered that Julia repay £18,000 plus interest to the estate. ask what the position might be that Julia appealed, and the case was heard in the Court of Appeal in parties will do if the latest will was November 2012. The Court of Appeal reserved judgment, but Lord they cannot settle properly executed and Justice Mummery said that the case was “of importance” because today, and why he or she therefore it highlighted the need to respect the rights and wishes of older inherits the whole people. Lord Justice Patten said the legal costs risk leaving “nothing that is a better option than the estate. The interests left in this estate”. current proposal. behind this might be a Is there another proposal that can be bitterness that they were the only sibling around to help their parent in generated today that will better address the last difficult years of their life; a strong feeling that the time and effort each side’s interests? involved in this care should be recognised and possibly rewarded by the Mediators look to help parties absent siblings; an offence to their sense of justice that there should be generate potential solutions or to create an equal distribution of the estate; and a conviction that the deceased movement towards a solution. More parent would undoubtedly share that same opinion. often than not, movement will stop The mediator’s early work is to uncover the parties’ respective interests, before settlement is achieved. The fact to ensure that the solution they finally design addresses as many of these that there is a mediator present assisting as possible. This is a distinguishing feature of mediated settlements: they this negotiation means that there are are much broader in scope than the powers a judge has. greater prospects that deadlock can be An opening statement from the parties can be crafted in such a way as broken, and mediators will apply various to avoid setting out positions or demands, and instead focus on feelings. methods to assist, with the emphasis on The statement could be a short reflection on how the dispute arose, how the parties finding their own solution. that makes the party feel, why it makes them feel that way, and what One of many such methods is to put they would like to change. the decision-makers together at the end In joint meetings, parties can reveal these interests to the other side, of the day to speak alone and agree satisfying their need to be heard, and giving the other side an opportunity what they want to do – if interests have to listen to and hopefully understand their view without necessarily been uncovered and the attitude to the agreeing with it. This may not produce the immediate acknowledgment dispute transformed into a collaborative sought, but it informs the other side that such acknowledgment is an search for a mutually acceptable solution, ingredient to the solution of the dispute. This makes for a far more this can be a very powerful tool. effective ‘day in court’ than an actual day in court, where you simply The aim of every representative is to confirm your statement to be true and then face cross-examination. Joint help their client achieve the best possible sessions are not always possible, or may go ahead in the absence of one solution; the mediation process can help or more individuals because they are not ready to share a room with an define and achieve that goal. opponent, but where they do occur, they serve the useful and productive purpose of reopening direct communications between the parties, which above and beyond a financial settlement. It can also be useful in multiparty actions, where parties have separate representation, or where litigants in person are involved and you need a conduit to filter your negotiations with them.
PS January 2013
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Published on Jan 1, 2013
This article first appeared in the January 2013 edition of PS, the magazine of the Law Society's Private Client Section (www.lawsociety.org....