The Benefits of Not Having Your Day in Court
In my experience, mediations involving disputed wills and other inheritance related claims have a particularly high success rate. But is there anything about these cases which makes them particularly suitable for mediation?
Parties to a dispute often talk about wishing to “have their day in court”. However with the modern litigation process, litigants can sometimes find themselves restricted in terms of what they can actually say such that in terms of actually having their say they are limited to trying to answer leading and closed questions from the opposing barrister with sometimes the odd question from the judge thrown in.
With increasing pressures on court time, a judge may not be that interested in hearing about the full family history and the emotional background to the dispute. They may not think that it is all relevant to the discreet legal issues which they need to decide.
In contrast, in a mediation parties have the opportunity in the safe space of a physical or virtual breakout room, to talk freely about their feelings in terms of grief, perhaps resentment and sometimes anger about the situation in which they find themselves and the actions of the other party. In most of these disputes just about the only thing upon which the parties agree is that their deceased relative would absolutely not have wanted to see all, or a significant part, of the wealth which they had built-up during their lifetime spent on taking the dispute to trial.
In addition, with will validity disputes it is often a binary outcome: the will is either valid or it is not. Mediation offers the opportunity of a realistic and in-depth assessment of the strengths and weaknesses of the opposing positions to create a clear picture of the best upside and the worst downside of actually having a day in court before you actually have to pay for it!
Another benefit of the mediation process is the inherent confidentiality. There may be the odd litigant who actually relishes the publicity of a report in a daily newspaper, but most families probably do not really want to have their dirty linen washed in public. Understandably, in the business of selling the maximum number of papers, journalists will often concentrate on the more lurid aspects of the dispute as opposed, sometimes, to those parts of the case which are most relevant legally.
What is said in the charged environment of a public courtroom cannot readily be ‘unsaid’. There is often a big winner and a big loser and the bridges which have been burned in the court process will never be rebuilt. In contrast, in at least some of the mediations I have been involved with, the door has been left open for some future contact. Although each party may still not actually accept their opponent’s position, they at least, perhaps, have a greater understanding of why “they said that”.
In addition, the parties and their representatives can carefully select a mediator known to have expertise and experience in the particular area of law involved. Even these days, it is still possible as a result of the vagaries of the court listing system to be left with a judge with limited experience in inheritance disputes.
Finally, of course, settlement at a mediation is, apart from implementing the deal, the end of the matter. In contrast, a judgement at first instance may be appealed causing yet further months of delay, worry and expense.
So “be careful what you wish for in life as you may get it”.
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The information given here is intended for general information purposes only and should not be taken as legal advice.