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How Mediation Can Help Resolve Inheritance Disputes

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 charities. 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 private.   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 mediator will: ·        

  • 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 previously considered. ·        
  • Make suggestions to each party concerning alternative solutions. ·        
  • 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 dispute.

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 possible.

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 place.

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.