The potential benefits of resolving even the most heated of disputes through effective communication are obvious but often under-utilised.
The litigation of disputes is inherently contentious and can have potentially disastrous financial consequences for the unsuccessful party at a trial – not forgetting reputational damage for all parties.
Despite these constants a great many of those who are involved in disputes nevertheless resolve to proceed with litigation given the perceived unreasonable position of their opponent and almost invariably as a point of principle.
The Court has long recognised the inherent risks in parties, particularly private individuals, pursuing their positions through to Trial whereby process dictates for there to be a winner there must be a loser, the consequences of which can be financially ruinous even for the winner should the loser be unable to pay.
As such the Court continues to encourage parties to a dispute to engage in Alternative Dispute Resolution (ADR) the most relevant and common form of which as far as contentious probate disputes is concerned, is mediation. So successful is ADR in resolving such disputes, some barristers have referred to ADR as perhaps being a more suitable acronym for “Alarming Drop in Revenue” as for every successful mediation a lucrative brief for trial is effectively lost.
In fact, so keen is the Court to avoid having to try these disputes, not only to save the parties from themselves but also to free up the finite resource of judicial capacity, that a party who is subsequently found to have unreasonably refused an invitation to mediate can expect to find themselves on the wrong end of an order for costs, even where they ultimately win at trial.
The possibility of making ADR compulsory has also been given judicial consideration which if accepted, will change the landscape further.
As a firm, we have been directly involved in a significant number of successful mediations over the years and assisted clients in securing carefully negotiated bespoke settlements. The settlement of disputes achieved at mediation has the following benefits over proceeding to a Trial:
- It may take 18-24 months to get to an eventual Trial given due process and the Court’s own caseload, whereas a mediation can be organised between the parties and held in a matter of weeks;
- The costs of a mediation are a fraction of those that would be incurred in proceeding through litigation to an eventual Trial;
- The parties need not speak to each other or even see each other at a mediation whereas at Trial the parties and their witnesses may be required to give evidence and be scrutinised in cross-examination which for many is a stressful and anxious prospect;
- Mediation offers a discreet forum for settlement which can preserve reputations and maintain confidentiality;
- Mediation is a co-operative exercise whereby the parties will only settle if they both agree whereas the parties have far less control over the outcome of a Trial; and
- The settlements that can be achieved at mediation are far more flexible and creative than the rigid statutory framework that a Trial judge is constrained by.
With the above in mind, mediation is faster, cheaper, more discreet and a more flexible solution to the resolution of disputes.
Our contentious probate team specialises in all aspects of contentious probate and is consistently ranked in the top tier of The Legal 500.
The team is headed up by Robert Weston, who is listed in The Legal 500 as a “leading individual” and was the instructing solicitor for the successful party in the landmark judgment of Walker v Badmin. Robert, together with Suzanne Lee and Andrew Chandler, are all full members of The Association of Contentious Trust and Probate Specialists (ACTAPS) and, together with Victoria Wall, represent clients both nationwide and abroad in both bringing and defending claims.
If you have a contentious probate matter which you would like to discuss with a specialist solicitor with a view to instructing mfg Solicitors, please visit https://www.mfgsolicitors.com/site/services-for-me/contentious-probate/ for further information and contact details.