Probate Mediation

Sophie Price

Why choose mediation for contested probate?

At Osbornes, we understand that probate litigation is often highly emotive. Unfortunately, there is nothing that can be done to avoid that aspect entirely, but if you are willing to proceed to a mediation to resolve matters early – you can avoid hostile litigation and the prolonged emotional toll that goes hand-in-hand with this area of law. Moreover, a refusal to accept mediation can result in higher legal costs.

The Importance of Mediation

Here at Osbornes Law, the contested probate team understand why you may be keen to get to court to fight your position. There is often a sense of fighting matters out of principle. However, our approach is to guide clients towards resolving their disputes through mediation (if possible) or other forms of alternative dispute resolution (ADR), as may be appropriate depending on the circumstances.

Refusal to mediate can be costly

Both parties are expected to follow certain steps before issuing proceedings – this is referred to as ‘pre-action protocol’. In essence, parties must exchange sufficient information to enable them to understand their respective positions.

Part of the pre-action protocol is to consider whether the matter may be settled without reference to the court at all. Clients often, through no fault of their own, do not appreciate the considerable time it takes from preparing for and issuing proceedings to settling the claim.

It is not uncommon for litigation in England and Wales to take in excess of two to three years (or sometimes longer). The position is no different for probate disputes. In recent years, the court has emphasized the importance of ADR and has, on occasion, made an adverse cost order against a party who unreasonably refuses to mediate – this can be the case even if the party is ultimately successful in their substantive claim.

Case Study: Importance of Mediation in Probate Disputes

This point was illustrated in a recent commercial case: Conway v Conway & Anor [2024] EW Misc 19

The dispute focused on whether or not the defendants would have a legal obligation to transfer the barn they were renovating back into the claimants’ names. The parties had been unable to reach agreement about an option for the claimants to repurchase the barn from the defendants in the future. The court rejected the claimants’ argument that they had orally agreed such an option. The defendants’ succeeded in their counterclaim for an order that the barn be transferred to them.

Inexplicably, the defendants had rejected all three requests for a mediation as a means of trying to resolve the dispute. Their unwillingness was a matter of “serious concern” to the judge who did not know why they had refused the offer of mediation. He wanted them to demonstrate “compelling reasons” why they flatly rejected mediation. Unfortunately for the defendants their refusal to mediate fed directly into the judge’s decision on costs.

The starting point is that the losing party pays the winner’s costs, but the court has discretion to make different costs orders if, for example, a party has acted unreasonably.

Here, the defendants’ refusal to mediate – or enter any form of ADR – led the judge to order them to pay 25% of the claimants’ costs. The judge remarked that “the importance of mediation can never be over-emphasised”.

How Probate Mediation Can Help

Our specialist team of contentious trusts and probate solicitors enjoy close working relationships with skilled mediators who are experienced in these types of cases. Mediation focuses the parties’ minds on the issues, saves time, and minimizes the significant costs involved in pursuing litigation through the court.

Mediation usually works; sometimes it does not; but if you can at least try to resolve issues without resorting to litigation – you can satisfy the court that reasonable efforts were made and can protect your position on costs.

The contentious probate team at Osbornes Law are experienced in advising clients throughout the entire claim process, whether this be via the courts or settled at mediation. Our solicitors work alongside clients to encourage early resolution via mediation or other appropriate forms of ADR with the aim of bringing the dispute to an early, cost-effective conclusion.

To speak with one of our solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811