MEDIATE BEFORE YOU LITIGATE!

November 6, 2014

“It’s about a Will, and the Trusts under a Will – or it was, once. It’s about nothing but costs now. We are always appearing, and disappearing, and swearing, and interrogating, and filing and cross-filing, and arguing, and sealing, and motioning, and referring, and reporting, and revolving about the Lord Chancellor and all his satellites and equitably waltzing ourselves off to a dusty death, about costs. That’s the great question. All the rest by some extraordinary means, has melted away.”
– Charles Dickens, Bleak House.

Unfortunately, the reality of disputes about Wills and Trusts often reflects the fictional events depicted by Charles Dickens. For example, in a recent English Court of Appeal case concerning a dispute between siblings about their mother’s will, the estate was worth approximately £200,000.00 but after a six day trial involving 26 witnesses and an appeal, all of the estate was, tragically, exhausted by legal costs.

The overriding objective of the Rules of Court is to enable the Court to deal with cases justly which includes, amongst other things, saving expense, ensuring that the case is dealt with quickly and fairly and allotting to it an appropriate share of the Court’s resources. Ultimately, at a trial, the Judge makes the decision and there is usually only one winner.

Another option available to parties in this kind of dispute is ‘Alternative Dispute Resolution’, such as Mediation, where the parties and only the parties have control over the outcome of a process facilitated by an independent third party mediator. This process may enable the parties to maintain some form of relationship by reaching a confidential, negotiated and mutually acceptable settlement, which is not always the outcome of court proceedings. The Northern Irish judiciary is of the clear view that mediation can play an important role in achieving the overriding objective by affording parties to a dispute the opportunity to resolve the dispute quickly and cost effectively.

Mediation at an early juncture in the English Court of Appeal case referred to above could have avoided such disproportionate costs and the family may have been able to reach an agreed settlement whereby their mother’s estate could have been preserved for the benefit of all of the family. Mediation can be much less expensive than traditional litigation, particularly if the parties avail of the process at an early stage in the dispute and prior to issuing court proceedings.By way of a very broad comparison, the costs of mediation could be around 25% of a High Court trial. In addition, parties to a dispute should be aware that if they lose a case at trial, the normal Order of the Court is that the unsuccessful party bears not only his own costs but the costs of the successful party. In mediation, the parties usually bear their own costs. Therefore, the potential costs risk is immediately reduced by 50%.

Mediation and other issues which arise in disputes about Wills and Trusts and during the administration of estates will be the subject of the inaugural Northern Irish Conference of the Institute of Legacy Management (“ILM”) which will be held on 18 September. With over £2bn being bequeathed to charities in the UK every year, I regularly act for charities in cases where disappointed family members seek to contest the deceased’s will or seek further provision from the estate.

In such cases, it is clearly in the interests of both the charity and the family to explore whether costly and protracted litigation can be avoided and seek to ensure that Bleak House does not become a part of the family history.