This week is International Mediation Awareness Week and it has been encouraging to see so many articles and people sharing their experiences in mediation in a variety of circumstances, whether it’s commercial disputes, family mediation or landlord/tenant issues. However, mediation is still underused as a potential resolution in many areas of the law, including private client.
Why does mediation lend itself to private client work?
Contentious trusts and executries appear to be on the rise. Whether it is just that the pandemic has heightened certain emotions, or because people have had more time to become caught up in problems, it is unclear, but many clients are increasingly finding themselves in “contentious” situations.
Whilst many executry practitioners will be well-versed in managing estates, when it comes to trying to reach resolutions between beneficiaries, it can often become less about the law and what is practical, and more about managing family dynamics.
I have had the opportunity to be involved in several executry mediations, which have successfully resolved conflicts (sometimes decades-old) and allowed estates to be wound up.
This method of resolving often fraught and emotional situations is one I am very passionate about having had experience of the value of a well-timed, well-planned and well-executed mediation.
How can mediation help with contentious estates?
I recently spoke about the use of mediation in executries at the STEP WS Private Client Conference alongside Charlie Irvine (of Charlie Irvine Mediation and Course Leader at Strathclyde University). We discussed a variety of scenarios and how mediation can help resolve these disputes. Some of the key points we raised were:-
- Mediation can avoid protracted correspondence that worsens the situation over time;
- It allows parties to “have their say”, which they likely wouldn’t get if it went to Court;
- The power is in the hands of the parties who are there on the day – they make the decision and reach an agreement, not the mediator, not an arbiter and not a judge;
- It can deal with not just the “legal” aspects, but also the practical aspects of how it will work in practice, which may include discussions on financing, tax considerations, conveyancing issues and so on; and
- It may save time and money in the long run if a mediation is successful.
Why is mediation not used more often in these scenarios?
It is unclear why mediation isn’t used more often with contentious estates and it is perhaps a “fear of the unknown” for those who have never been involved in a mediation before and rely on the tried and tested methods. Often by the time that correspondence has failed, the parties are so entrenched that litigation appears to be the only resolution and it is difficult to arrange a mediation once relationships have broken down to that extent (albeit not impossible).
I also commented on this point earlier this year for the Core at 20 Challenge, in which I highlighted that there may be a degree of hesitation on the solicitor’s role once mediators are brought on board. In my experience, the role of the solicitor remains critical throughout the mediation and a link to my original article is here.
Hopefully, attitudes will change as more people read and learn about mediation and its use in these scenarios and we’ll see more widespread use of mediation in executries in the future.
Any tips on arranging a mediation?
There is a degree of preparation required in advance of an executry mediation, but one of the most important things to me is selecting the most appropriate mediators.
Mediation itself is an art-form and everyone has their own style, background and knowledge to bring to the table. I had the opportunity to take part in the Core Solutions recent training academy for mediators and participated in the role-play activities. It was a worthwhile experience and useful in understanding the different approaches and to hear some of the feedback from experienced mediators such as John Sturrock.
Some people may not be aware, but HMRC does have a mediation option now for resolving tax disputes and although HMRC uses their own mediators, you can request that a second mediator, chosen by you, is involved, which may assist your client going in to this.
I’ve never been involved in an executry mediation, what do I do?
As with many things in law, it is a niche area and might not be something every firm is comfortable advising on. In this case, I would suggest seeking out a firm with experience in executry mediation, to ensure the parties have the correct advice and are aware of what is involved.
If you would like to discuss using mediation in this way or have any general questions about the process, please get in touch.