Losing a loved one and dealing with grief is never easy.
It can be made considerably worse if a family dispute arises as to how a deceased’s estate should be distributed.
Disputes can result in expensive and time-consuming court proceedings, which can put a long-lasting strain on family relationships.
If a Will dispute arises, it is important to be aware of options for Alternative Dispute Resolution (ADR).
These can include a wide range of resolution processes that parties can use to narrow controversial issues and settle disputes, often with the help of a third party.
Mediation is one of the most common ways to facilitate a resolution of Will disputes.
The mediation process can also help in preserving fractious and fragile family relations.
Mediation is a form of ADR and provides a more cost-effective process to resolve a Will dispute by agreement without the time, stress, and cost of court proceedings.
It is a process whereby the parties attempt to resolve the dispute with the assistance of an independent mediator, who will work with both sides to resolve the dispute and reach a resolution.
The mediation process means the parties do not necessarily have to see one another, as the mediator will guide the process and act as a “go-between” and shuttle between the parties’ different rooms or virtual rooms (if the mediation occurs remotely).
They endeavour to fully understand the parties’ positions and help the parties work towards an agreement that is acceptable to both sides.
Advantages of Mediation
- It is a more cost-effective option for resolving a dispute, which helps minimise the stress involved as well as the inevitable financial pressures.
- It is more collaborative and flexible. The parties can be creative and agree to settlement terms that a court would or could not impose.
- It provides parties with a ”voice”, and it offers greater control over the outcome, rather than leaving the decision to be made by a Judge. The process gives the parties greater autonomy over the resolution, which can, in turn, lead to mutually beneficial agreements.
- It is confidential. The parties will usually be required to sign a confidentiality agreement.
- It is far less confrontational and adversarial than court proceedings. No one is required to give evidence or be cross-examined.
- Mediations tend to have a high success rate and can assist in preserving relationships between families.
Disadvantages of Mediation
- Mediation cannot always ensure an outcome that is favourable to both parties.
- Mediation can take a significant amount of time, and to be effective requires both parties to compromise and “give and take”. Each side will need to come to the mediation with a mindset of solutions and resolutions and be prepared to spend at least a day working through the process.
- It may be the case, due to the complexity of the dispute and the parties being unable to agree, that court proceedings need to progress in any event.
Litigation is an adversarial process with limited flexibility.
Strict rules of evidence apply, and the case is overseen by a Judge.
It is a more formal and structured process than mediation.
Once a claim has been issued in court, the Judge will timetable the proceedings, which will govern how the case will be conducted and how it will progress.
Advantages of Litigation
- Court proceedings provide more certainty due to their structured nature, whereby parties will understand what to expect.
- The decision is final and legally binding, which allows for a clear resolution.
- Court proceedings are sometimes unavoidable and can be useful in resolving disputes where the parties have become entrenched.
Disadvantages of Litigation
- The court process is costly and time-consuming.
- It provides uncertainty as to the outcome of a case. The power of the parties to determine the outcome is removed, and matters are determined by a judge who has heard evidence.
- Court proceedings can be an emotional and stressful experience for claimants and defendants. The process of a trial is daunting and intrusive.
- Court proceedings can often cause additional strain and create rifts between families.
Alternative Will Dispute Resolution
Before you embark upon a Will dispute, it is important to be aware of the court process and the alternative options available to help resolve disputes before deciding which avenue is right.
In some cases, court proceedings are unavoidable in resolving will disputes, depending on the relationship between the parties and the complexity of the case.
The suitability of either avenue depends on each case.