Mediation is perhaps the best known, most popular and flexible form of Alternative Dispute Resolution (ADR) and has advantages over litigation in the courts.
Mediation is a consensual and confidential process in which an independent third party, the mediator, assists the parties to achieve their own settlement to the dispute. A common misconception is that the mediator is some kind of judge. He or she is not. The mediator is not there to express views as to the rightness or wrongness of anything done by either party, or as to the strengths of either party's case. He or she is there to help the parties explore options for settlement. He may suggest possible solutions, but he does not and cannot impose them on the parties. This is not a trial.
Trust and estate disputes are particularly suitable for mediation. This could include: disputes as to the validity of a Will; claims for reasonable financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act); claims beneficiaries under a Will against trustees of a breach of trust and/or professional negligence; dispute about the exercise of the trustees' discretion; claims for repayments of “gifts” where there is a suggestion of the exercise of undue influence. Many other types of claims are suitable for mediation.
It will be a matter in each case to decide when is the right time to mediate a dispute. A number of factors will relevant. Mediate before costs become disproportionate. Generally it is better, mediate sooner rather than later. Ideally this will be at the time when the detail of the claim and the response are known to both sides, but before the costs, in reaching that stage, are so great that a settlement is no longer possible.
The choice of mediator is crucial. Many mediators have trained and are accredited but what really counts is experience and the different skills sets that they can bring to the process. Someone with an awareness of the particular problems inherent in trust and estate litigation is likely to be far better than a good mediator who has no experience of the area.
The parties to the trust or estate dispute are usually trustees or personal representatives and beneficiaries of the trust or estate. In some cases the dispute may be between the beneficiaries, and the trustees' role is simply to implement what is agreed between the beneficiaries. If their interests may be affected beneficiaries should be at the mediation in person or by someone representing them.
Lawyers are often present at mediations, though of course there is no obligation on a party to have a lawyer at the mediation. Generally it is not necessary to have experts present, occasionally an accountant will give tax advice.