Question 1

What is probate mediation?

Accepted Answer

Probate mediation is a confidential process in which an independent neutral mediator helps the parties to a dispute about a will, an estate or a trust to explore whether they can reach an agreed resolution. The mediator does not decide the dispute.

Question 2

When should a probate dispute be mediated?

Accepted Answer

There is no fixed point. Mediation can be useful once each party understands the essential facts and the issues between them. Early mediation can preserve estate value; mediation later in proceedings has the benefit of fuller evidence.

Question 3

Can we mediate before court proceedings are issued?

Accepted Answer

Yes. Parties do not need to have commenced proceedings in order to mediate, and pre-action mediation is common in estate and trust disputes. The pre-action protocols and the court generally encourage parties to consider dispute resolution before issuing.

Question 4

Is mediation confidential?

Accepted Answer

Mediation is conducted confidentially and, generally, on a without prejudice basis under the terms of the mediation agreement signed by the parties. What is said to the mediator in a private session is not passed on without permission. There are limited exceptions, which the mediation agreement sets out.

Question 5

Does the mediator decide who is right?

Accepted Answer

No. The mediator is neutral, does not adjudicate and does not impose a settlement. If the parties both ask, a mediator may offer an evaluative comment on aspects of the case, but that is not a decision and is not binding.

Question 6

What happens if we cannot agree?

Accepted Answer

If no agreement is reached, the parties are free to continue with the dispute or with proceedings. Nothing said in the mediation can generally be relied upon later, and the mediator can often continue to assist the parties after the mediation day.

Question 7

Can solicitors and barristers attend?

Accepted Answer

Yes, and they frequently do. Parties may also attend without legal representation, although obtaining legal advice before agreeing settlement terms is generally sensible.

Question 8

Can mediation take place online?

Accepted Answer

Yes. Online mediation is well established and works well where parties are in different locations. In person mediation can be arranged where that is preferred.

Question 9

How long does mediation take?

Accepted Answer

Mediations are usually arranged as a half day or a full day, depending on the complexity of the dispute and the number of parties. Some disputes settle on the day; others settle in the days or weeks that follow.

Question 10

Who pays the mediator's fee?

Accepted Answer

Commonly the fee is divided equally between the parties, but the parties are free to agree another arrangement, including payment from the estate or trust fund where that is properly authorised.

Question 11

Can an executor or trustee mediate?

Accepted Answer

Executors and trustees regularly take part in mediation. They should take their own legal advice about their position, the protection available to them and whether any particular procedure or approval is required before compromising a claim.

Question 12

Can a settlement reached at mediation be legally binding?

Accepted Answer

Yes. Terms recorded in writing and signed by the parties can create a binding agreement. Where proceedings have been issued, settlement is often recorded in a consent order or Tomlin order. Parties should take legal advice on the form of any settlement.

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