Mediation is ideal for resolving contentious probate, contested wills, and inheritance disputes. Family members are often still grieving, and court proceedings will often cause rifts between parents and children and drive a wedge between siblings. This article considers the appropriateness of mediation in contentious probate claims and provides tips to improve the chances of reaching a settlement.

Contentious Succession and Mediation

Many different types of contentious probate disputes can arise. These may include disagreements about:

• lack of testamentary capacity

• lack of testamentary intent

• lack of awareness and approval

• lack of due execution

• undue influence

• fraud and forgery

• revocation

• construction or interpretation of a will

• a lack of adequate financial provision

• disputes during estate administration

In mediation, the parties to a dispute sit down with a trained and neutral third person (the mediator). An agreement is reached only if all parties agree.

Mediation allows a Plaintiff to sit in the same room as the other parties (often friends and relatives of the deceased, and perhaps also charitable beneficiaries). Mediation allows the parties to fully air their grievances while trying to preserve family relationships and can speed settlement.

The Association of Litigious Trust and Estate Specialists (ACTAPS) Code for the resolution of trust and estate disputes supports the use of mediation at an early stage. Although the Code is voluntary, judges and courts hold it in high regard.

Mediation has many advantages over court hearings:

• costs: mediation is usually less expensive than going to court;

• speed: mediations can be arranged in a matter of days, unlike litigation;

• mutually satisfactory results: parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed on them;

• Confidentiality: Mediation is confidential and, unlike the judicial process, there is no public record;

• Comprehensive and customized agreements: Mediation agreements can address both legal and extra-legal issues. Mediation agreements often cover procedural and psychological issues that are not necessarily amenable to legal determination;

• Preserving a Continuing Relationship: A mediated settlement can often preserve a working relationship in ways that are not possible in a win-lose litigation scenario; and

• control-mediation is an entirely voluntary process. The parties are in control of the outcome.

Mediation may be the first time a party’s attorney has met with their client. This will allow the prosecutor and/or attorney the opportunity to assess how the party and any other witnesses present may proceed at trial if the claim is not resolved. It also gives the party the opportunity to consider how their attorney/attorney is doing.

Claimants can expect:

1. Be asked if they would like a joint opening session, in which all parties and their attorneys meet with the mediator;

2. The process of taking time with low offers at the beginning.

3. Having to compromise;

4. Hearing unfamiliar legal terms during mediation. The attorney for one of the parties may wish to discuss this with her client prior to mediation;

5. A Respondent may want to settle in its entirety, including mediation costs; and

6. If the dispute is not resolved at or shortly after mediation, the matter will likely go to trial.

Good preparation can increase the chances of reaching an agreement in mediation. Such preparation includes:

• decide what disclosure will be required;

• consider whether additional evidence will be needed;

• perform a detailed risk analysis of the matter;

• decide if a lawyer is needed and, if so, whether you should attend mediation;

• discuss with the Complainant what, if anything, they would like to say;

• considering who should attend with the Complainant. For example, if family members are involved in the decision-making process, will they also attend?

• considering the mediation agreement;

• preparing a position statement. Check the position paper ‘For mediation purposes only. Without Prejudice and Confidentiality.’ Remember that a position paper is not the same as a skeletal argument from the Court and consider whether to prepare an additional paper for the mediator’s eyes only;

• considering the content of any mediation package;

• prepare a draft settlement agreement/Consent Order/Tomlin Order; and

• preparation of cost details.