The ‘Litigation and Dispute Resolution’ departments of full service legal practices in the UK will, almost universally, provide Alternative Dispute Resolution (ADR) services or at the very least they will be able to facilitate access to trained mediators.

ADR has been used in the UK for many years and particularly since 1999 when the Woolf reforms gave rise to the Civil Procedure Rules (CPR). The CPR identified principles that aimed to make civil litigation quicker, fairer, more cost-effective and less adversarial for all clients, whether they be commercial clients or private individuals.

It is now expected that parties to a dispute, including Will disputes and contested probate, will attend at least one ADR session. Parties who refuse may find themselves sanctioned by the court with additional costs.

Is ADR just another name for mediation?

ADR is an umbrella term for a number of non-contentious methods that can be used to settle a legal dispute without redress to the court. In fact, any process which involves disputing parties settling a dispute without violence, harm, intimidation, or prejudice might be described as ADR. However, in reality, formal ADR involves the application of resolution techniques by trained third parties to provide a constructive, focused platform which leads to a settlement agreement that contractually binds the parties.

Typically, ADR might include one or more of the following:

• Mediation (the most commonly-used ADR method for Will and probate disputes)
• Conciliation
• Early neutral evaluation
• Expert determination

If carried out correctly, ADR should achieve a similar or improved result to what would be achieved in the court and reduces the likelihood of parties defaulting on the settlement agreement.

ADR in the contentious probate context

While the ADR process is flexible, adaptable and designed to avoid litigation, the high value and contentious nature of many inheritance claims means having access to solicitors, counsel and other professional experts is essential to ensure the best outcomes possible.

It is customary for parties to attend mediation sessions with at least one member of their legal team and typically this will be a specialist contentious probate solicitor who can ensure the matter is effectively, objectively and fairly managed.

Mediation is a particularly effective means of resolving a probate dispute as inheritance and Will matters are likely to be highly emotionally charged, personal and integral to the future financial plans of those involved.

With this in mind, mediation makes as much economic sense as it does legal sense. This is because it is likely to be cheaper, quicker and more conciliatory than going to court, while mediated settlements can ‘feel’ fairer to all parties involved as opposed to those decided by a judge.

Other reasons why ADR is effective for probate disputes include the following:

• Mediation can break down a litigation ‘impasse’.
• The process is confidential and almost certainly less stressful than going to court.
• ADR allows disputing parties to mutually choose a mediator they are happy with (the courts do not allow disputing parties to choose a judge).
• Mediated settlements place less emphasis on ‘winner/loser’ type settlements.
• ADR is flexible, voluntary and informal.
• There is a documented high success rate.

Furthermore, ADR may be used in any of the following kinds of probate dispute:

• Executor disputes
• Will validity disputes
• Inheritance Act claims

The view of the court

Civil Procedure Rule 1.1 states the overriding objective of enabling cases to be handled “justly and at proportionate cost” – something which is a feature of ADR – and rule 1.3 states that parties are required to assist the court in this objective.

Several notable cases, Halsey v Milton Keynes General NHS Trust [2004], PGF II SA v OMFS Co 1 Ltd [2013] and Reid v Buckinghamshire Healthcare NHS Trust [2015] have demonstrated the court’s unequivocal endorsement of established forms of ADR and its readiness to impose costs sanctions when parties demonstrate either a refusal to attend mediation or a failure to respond to requests for mediation.

And in Thakkar v Patel [2017] the Court of Appeal upheld a ruling against a trial judge’s award of 75% of costs to the claimant because the defendant had delayed responding to requests for mediation and then rejected proposed mediation dates with a number of excuses. In the first instance, the court felt that there had been a significant chance of settlement had mediation taken place and, in his appeal court conclusion, Jackson LJ said “in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it”.

Effective contested probate solutions with Simply.Law

Simply.Law helps ensure that specialist contested probate solicitors are connected with the clients they are best-suited to serve. We know how distressing it can be to challenge a Will or to contest probate and we have member lawyers with the expertise to help you.

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