Inheritance Wars: What Can Mediation Do That a Judge Cannot?

This is an Inheritance Wars special feature rather than a numbered case. The cases mentioned below are drawn from the series and are used only as illustrations of the kinds of arrangement mediation can explore. None of the settlement structures described here was actually reached in those cases.

The courtroom question

A judge must decide the legal issues put before the court.

Was the will valid? Did the testator have capacity? Was there undue influence? Was a promise made, relied upon and acted upon? What does the document mean? What order does the law permit the court to make?

Those questions matter. Sometimes only a court can answer them, and a party may legitimately want the answer.

The mediation question

Mediation asks something different: what arrangement could actually resolve the dispute?

That is not the same question, and it does not always have the same answer.

Family farm

A court may determine ownership.

A mediation might explore division of fields; transfer of the farmhouse; rights of occupation; a staged buyout; business succession; or the sale of only part of the land. The farms in Thorner v Major and James v James each had to be valued, argued over and decided upon. Neither family agreed such a settlement — but the possibilities existed.

Family home

A court may determine whether the will is valid.

A mediation might explore life occupation; deferred sale; a lump sum; a trust arrangement; or the purchase of another beneficiary's interest. Disputes such as Rea v Rea and Schrader v Schrader turned on a single house which could only be awarded to one side by a judgment.

Charity v family

A court may decide that the charity receives everything, or nothing, depending upon the legal issue.

A mediation may be able to explore an agreed charitable payment while retaining property within the family — something no court could have imposed in Gill v Woodall or Ilott v The Blue Cross.

Family business

A court determines legal rights.

Mediation might explore shares; control; buyouts; dividends; management; or the separation of property from the operating business. In Bond v Webster the family holding company was at the centre of a four-week trial.

Personal possessions

A court case worth hundreds of thousands of pounds can still contain an argument about Dad's watch; Mum's jewellery; family photographs; furniture; letters; or sentimental possessions.

A mediator can deal with these issues too. A judge, in a probate claim, usually cannot.

Explanations

Sometimes a party wants to know: Why did Dad change his will? Why wasn't I told? Why did you stop me seeing Mum? What happened to the money?

A court may determine the legal consequences. It cannot always provide the conversation the family actually wants.

Confidentiality

Mediation is conducted privately. Discussions are confidential and generally without prejudice under the terms of the mediation agreement signed by the parties, subject to the exceptions recognised by law. A trial, by contrast, is normally public and the judgment may be reported — as every case in this series demonstrates.

Cost

Mediation is not automatically cheaper than litigation. It has its own costs, and a mediation which does not settle adds to them.

What can be said is narrower and more honest: a successful mediation can avoid some or all of the future costs of continuing litigation. In disputes where costs are already approaching the value of what is being argued about, that is a significant point.

Control

In court, the parties present their cases and the judge decides.

In mediation, nothing is agreed unless the parties agree it.

The best settlement may be one a judge could never have ordered.

Where a judgment is the right answer

Mediation is not always the answer, and this series does not pretend otherwise.

Where fraud, sham transactions, capacity or serious undue influence are alleged, a judicial finding may genuinely matter. A party may legitimately require vindication. Third-party interests, minors, protected parties or charitable duties may complicate settlement. Some disputes raise a point of law which only an appellate court can settle: mediation could have resolved the money in Marley v Rawlings, but it could not have created a Supreme Court precedent.

Mediation is also not a substitute for legal advice or, where necessary, protective court intervention. The mediator is neutral, does not decide who is right and does not advise the parties.

Before you ask "Who will win?", it may be worth asking: "What would settlement actually look like?"