To Mediate or Litigate? - Choosing the Right Route for Will Disputes

Losing a loved one and dealing with grief is never easy.

It can be made considerably worse if a family dispute arises as to how a deceased’s estate should be distributed.

Disputes can result in expensive and time-consuming court proceedings, which can put a long-lasting strain on family relationships.

If a Will dispute arises, it is important to be aware of options for Alternative Dispute Resolution (ADR).

These can include a wide range of resolution processes that parties can use to narrow controversial issues and settle disputes, often with the help of a third party.

Mediation is one of the most common ways to facilitate a resolution of Will disputes.

The mediation process can also help in preserving fractious and fragile family relations.

• It is a more cost-effective option for resolving a dispute, which helps minimise the stress involved as well as the inevitable financial pressures.
• It is more collaborative and flexible. The parties can be creative and agree to settlement terms that a court would or could not impose.
• It provides parties with a ”voice”, and it offers greater control over the outcome, rather than leaving the decision to be made by a Judge. The process gives the parties greater autonomy over the resolution, which can, in turn, lead to mutually beneficial agreements.
• It is confidential. The parties will usually be required to sign a confidentiality agreement.
• It is far less confrontational and adversarial than court proceedings. No one is required to give evidence or be cross-examined.
• Mediations tend to have a high success rate and can assist in preserving relationships between families.

Litigation is an adversarial process with limited flexibility.

Strict rules of evidence apply, and the case is overseen by a Judge.

It is a more formal and structured process than mediation.

Once a claim has been issued in court, the Judge will timetable the proceedings, which will govern how the case will be conducted and how it will progress.

• The court process is costly and time-consuming.
• It provides uncertainty as to the outcome of a case. The power of the parties to determine the outcome is removed, and matters are determined by a judge who has heard evidence.
• Court proceedings can be an emotional and stressful experience for claimants and defendants. The process of a trial is daunting and intrusive.
• Court proceedings can often cause additional strain and create rifts between families.