Will dispute solicitor Lee Dawkins looks at the important role that mediation can play in resolving contentious probate cases cost effectively.
Alternative Dispute Resolution
Any experienced will dispute solicitor will know that dealing with contentious probate cases cost effectively is not just about taking court action. In days gone by the knee jerk reaction of many litigation solicitors was to reach for the court summons. However, times change and the civil justice system in England and Wales is now far more complex and nuanced. In fact the courts actively discourage litigation and judges can make punitive costs awards against parties who fail to make an effort to resolve a dispute out of court. Accordingly, the modern will dispute solicitor must take full advantage of all the options now available. Not only will this benefit his client by resolving matters as speedily and as cost effectively as possible, but it will also avoid the risk of a court imposing costs penalties on his client for taking premature court action.
At the top of the list is Alternative Dispute Resolution (often referred to as ‘ADR’ by solicitors). ADR is very much ‘flavour of the month’ with courts and judges. Parties are encouraged to embrace ADR wherever possible, and this is as true in the field of contested wills as anywhere else.
We make a point of inviting the other side in most contested will dispute or contentious probate case to engage in ADR. It can help to break down the traditional distinction between “winners” and “losers” which can be particularly important in these cases which often see families deeply divided. ADR can also help to avoid the escalation of solicitors fees and legal costs. This is crucial in estates of a modest size and value, where legal fees can often have a disoroportionate impact on the money that is available for distribution to the parties.
We are strong supporters of mediation in particular and have attended numerous mediations around the country in contested will claims that have resulted in successful settlements for our clients. As an experienced will dispute solicitor i am very aware of the advantages of mediation over litigation; mediation is a faster and less divisive alternative to a contested trial, but above all, it is significantly cheaper. Of course, mediation is not suitable in every will dispute case, but we believe it should always be considered, alongside other suitable forms of ADR, such as “early neutral evaluation by counsel”.
The ACTAPS Code
We are also committed to following the ACTAPS Code. The Association of Contentious Trust and Probate Specialists (better known as ACTAPS for short) have created the Code to promote the resolution of trust and probate disputes. A specialist will dispute solicitor will know the damage that acrimonious and expensive court proceedings can cause. The Code is designed to reduce conflict and it endorses the use of mediation processes at an early stage. Although the ACTAPS Code is voluntary, it is held in high regard by judges and parties who disregard the Code can find themselves in hot water with the court.
In brief, the ACTAPS Code gives provision for the following:-
- A detailed Letter of Claim relating to the particular type of will dispute or inheritance claim;
- The documents that the parties should produce;
- Early production of medical records;
Provision of a Lark v Nugus letter;
Suggested time limits.
Beware of costs sanctions
If a party fails to act reasonably in a will dispute then they can find themselves facing the wrath of the judge. Because the civil justice system is now geared to resolving disputes out of court as much as in court, judges are far more likley to impose costs penalties on any party they feel has failed to embrace ADR or been too quick to litigate. It is becoming increasingly common for the courts to order parties to pay their opponent’s legal costs for unreasonably refusing an invitation to take part in mediation, regardless of the merits of their legal case. Accoringly it is vital that your will dispute solicitor is experienced in the techniques of modern litigation and is able to deal with your case cost effectively, without incurring costs sanctions from the court.
Free will dispute helpline
We operate a free will dispute helpline. Call us for an idependent assessement of your case and the availability of No Win, No fee funding on 0808 139 1596 or drop Lee an email at [email protected]