Posted: Tuesday, 5 November 2019 @ 10:34
Since 2016 there have been a rise in the number of individuals going to court regarding their inheritances.(or lack of them)
This can be attributed to the following reasons:
Recent Newsworthy Case Law. In July 2015, the Court of Appeal (Ilott v Mitson) awarded
an estranged daughter £143,000 after her mother left £486,000 to various animal
The ruling which was overturned highlighted that even when adult children have
been deliberately disinherited, it is still possible for them to challenge the
will of the deceased.
Traditional family structures have broken down With a rise in remarriages: many stepchildren now expect to
be included in wills, and sometimes bring claims against other beneficiaries if
they are disappointed with their inheritance.
Rise of property values in many parts of the UK over the
past decade means a growing proportion of estates are worth a lot of money giving increased motivation to take legal action.
Increased willingness of people to sue - individuals are more inclined to use lawyers if they are not satisfied with their inheritance.
However if you do get involved in an inheritance dispute what are the best ways to settle this? Is mediation the way forward?
What Is Mediation?
Mediation is Shuttle diplomacy, or mediated communication. The essence
of shuttle diplomacy is the use of a third party to convey information back and
forth between the parties, serving as a reliable means of communication less
susceptible to the grandstanding of face-to-face or media-based communication.
The intermediary serves not only as a relay for questions and answers,
but can also provide
suggestions for moving the conflict toward resolution and does so in
There is no specific set format for mediation but many mediators will
follow a format of having
an opening session and then holding private sessions with the parties.
This is where the parties select an independent third party or neutral
to assist the parties in
reaching an acceptable solution. The mediator will discuss the problems
with the parties both
together and separately in private sessions known as “caucuses.”
What are the Mediator’s Functions?·
The mediator’s role is to act as a catalyst to
enable the parties to resolve the difficulty for themselves. To do this the
- Establish exactly what the dispute is about.
Clarify the positions of the parties and
translate them into terms that are clearly understood by the parties.
- Establish what is important and what is not to
each of the parties, give priorities to these various requirements.
- Establish areas of overlap and help each side to
a position of compromise.
Extend discussions into matters or proposals not
Make suggestions to each party concerning
Exert pressure for a solution to be reached and
seek a face saving formula where appropriate.
Overall the mediator cannot and should not take
responsibility for settlement.
The most important goal for the mediator is to
ensure that the parties are given every opportunity to confront their
differences, understand them and try to resolve them. He or she will try to
break down barriers.
Fundamentally, the initial objective of the mediator is to
understand what the dispute is all about, identify issues and then focus on
strengths and weaknesses. Some mediators may try to apply pressure to help
reach a solution. It is important that you and your client do not feel
railroaded or bullied. You have the right to walk away if you want to.
What Is the approach of the mediator?
As mediator there will be a number of things which he or she will do
at the beginning of the day.
Often he or she will deal with them in
private session. The private or closed session is a central feature of the
mediation process and is the most effective dynamic of the mediation process.
Here the mediator holds a series of separate meetings with the parties in the
The goal of the mediator is to bring the parties together by finding
hidden agenda and exploring means of reaching agreement.
The mediator will take a series of steps to emphasise
confidence in the process by:
Securing confidence – The mediator must ensure that all
confidences are strictly preserved. Trust will be lost if it is suspected that
even a hint of anything to the other side is being expressed to the other side.
Clarifying issues – One of the key roles of the mediator is
to see what issues actually divide the parties and see what matters they can
agree on. Once these have been identified it is possible to build the items,
which can be agreed upon, and to explore solutions for possible agreement.
Avoiding value judgments – In contrast to some other forms
of dispute resolution, the mediator is not there to impose a solution and should not be
judging your conduct.
Testing reality – The mediator should examine critically the
arguments that each party has put forward and probe the confidence upon which
those views are held. A mediator should expose any weakness as soon as
Deflating extreme positions – Parties can take unreasonable
positions and be blind to the fact that they are doing so. A Mediator can be of
assistance in exposing this and then enabling face saving formulae to take
Encouraging ideas between the parties – This is where a
mediator can be of real assistance to the parties.
To be effective the Mediator must gain and retain the
confidence and respect of the parties. Trust has to be established from the
outset if the parties are to deal frankly and openly with the Mediator.
Always remembering that the Mediator is not a judge and does
not have to decide between the parties’ cases.
Conclusion - This gives an idea of how mediation can assist parties in reaching settlement prior to a case going to Court.