Mediating Probate Cases 

by Stephen Fielding

When I qualified as a mediator in 2003, I didn’t foresee that most of my mediations would turn out to be probate cases – people arguing about wills or intestacy. Nor did I realise how important mediation is for these cases especially.

All mediations have their toxic elements, but the mix of high emotion – sometimes grief, sometimes anger, sometimes resentment – coupled with the often fraught subject of money – can create a toxic brew indeed.

And mediation matters in these cases because the parties can at least shape an outcome which is in their own hands, rather than in the hands of a judge for whom the options are less nuanced and flexible.

Let me offer a few reflections under different headings, starting with preparation, which is so vital.

Preparing for a probate mediation

As in any case, it is vital to get to the bottom of what is really at issue – to see if one can see below the presenting surface to what is going on underneath. Very often this will be to try and understand why emotions are running high, especially in family situations – why people are acting in ways extraordinarily unreasonable, and which if they were observers of the conduct in others, they would seriously criticise. The isolation of the key issues, and the motivators at work, is where in my opinion the most valuable initial work is done, and it can and does shape the way the actual mediation day develops. As indeed can understanding the state of mind of the parties.

We will explore these in pre-mediation conversations, latterly on Zoom.

The position statement

I know that some legal advisors are not fans of the position statement, urging me just to read the pleadings. But I genuinely believe that each side’s position statement to be a vital tool for mediation. The reason is that, in it, each side can say what the main issues are and what outcome they are seeking at the mediation.

For myself, I prefer a short and concentrated statement of perhaps no more than two A4 pages. A wordy position statement, from which the mediator has to extract the key issues, is not very useful. With a really tight position statement from each side, it is possible to see their perspectives, to see what the clash really amounts to, and to see where you need to delve a bit deeper into the bundle. You can start to form an impression of where the pressure points are and where there may be areas of potential resolution.

Who should attend the mediation?

The vast majority of probate cases I have done have had solicitors representing the parties; a large number have also had counsel present. The parties will usually have a family member or friend present.  Sometimes I have found that too many ‘supporters’ can be no support at all, in the sense that they hinder the progress of the mediation, can fail to allow for flexibility.  Indeed, they can magnify dissent! It is worth asking the solicitor whether they think the people coming to support the client will be helpful towards getting a settlement.

An opening plenary?

There needs to be a discussion about an opening plenary session.  The orthodox position, as we all know from our training, is that you need in an opening plenary session to establish positions and interests and to see how far you can get before going into separate, or now of course ‘breakout’ rooms.  However, my experience is that the vast majority of parties do not want one in these sorts of cases.  Often there is a real fear by one party of being compelled to be in the same room as someone they have fallen out with in a big way, or indeed have not spoken to in years.  I say they don’t have to do that. 

So much so that my policy in principle, or my assumption, is that there will not be an opening plenary session.  And mostly this is agreed.

Mediation advocacy during the mediation

The key to this from my observation is that the advocate needs to be clear about the strength of the client’s case and to present this at the outset - My client has a strong chance of winning at trial for the following reasons - but should not overdo it or exaggerate the prospects of success. Nor to treat the mediation as a trial.  And as time passes through the day, to move from clarity about the strength of the case to how best a settlement can be arrived at - how winning for ‘my’ side can become a shared outcome for both sides.  The best advocates realize this.

Towards a successful probate mediation

One factor which I have found to be crucial and which any mediator will want to establish early on is, does each side really want to settle?

If they do – and most do –

(a) I try to find out what settling will mean for each party.  That is, I explore and note the benefits which each party will feel as a result of a settlement.  Here the benefits are usually personal – whether expressed in terms of being able to move on or being able to grieve or to get their life back etc.  This emphasizes the fundamentally personal nature of probate disputes.  And a successful probate mediator will therefore need to have an alertness to the personal and emotional as well as the more financial aspects; and

(b) if the parties genuinely want to settle, then the probate mediator will want to say that he/she is only finding the way to settlement, and not thinking about failure.  This gives hope, by fixing the goal of a positive outcome, rather than ambiguity.

What are the types of issues that arise during a probate mediation? How to navigate them successfully?

Valuation of a claimant’s interest, say a life interest. Consider capitalizing this on basis of rental value, then discounting back to get a Net Present Value.

Claimant’s need to buy a home, if property he/she has been living in has to be sold. On buying a replacement home, need to have estate agents’ particulars.  Plus, up to date valuations of the property to be sold. Saves wasting time on the day.

Costs to date and to trial.  Can be very high in relation to the value of the estate.  The higher they are, the less likely in general the appetite to go on to trial.  The lower they are, the more irrelevant they are.  Try to get an accurate picture of costs to date in advance of the mediation; and a reasonable estimate of the costs to trial. And try to raise and sort early on.  Can be very useful in getting to settlement.

Hostility between claimant and executors (say because the executors are children of the deceased and the claimant is a long-term partner, not their mother)

Can be tricky.

Defining what ‘reasonable financial provision’ is, and supporting financials

Often there is a dispute as to whether what is claimed for is indeed reasonable, the figures are disputed. The argument may have more to do with the defendants’ attitude to the claimant than to the actual merits

Lifetime gifts – valuing these in relation to a 50/50 split between beneficiaries

can be tricky. One of the beneficiaries may have been a carer, and a lifetime gift is a form of thank you, not affecting the ultimate distribution of the estate. On the other hand, the parties may have to work out an appropriate valuation mechanism to subtract some or all of the value.

Undue influence, lack of capacity, forgery

These are sometimes pleaded or raised but in the absence of evidence often fall away in the course of the mediation, in favour of plain 1975 Inheritance Act considerations.

Litigation and other risks

Introducing litigation risk can be useful in counterbalancing the claim from one side that the case is pretty much open and shut, especially if you assume, as I do, a minimum litigation risk of 30%. And there are other risks – such as reputational risks, of course, where parties may not want the family history or recent conduct to be brought out at trial.  That too can have a monetary value attached to it.

Size of opening offer or first counter-offer

I try to impress upon the parties that an opening offer should bear some relationship to the settlement desired and not be a restatement of the party’s pre-mediation position.  And that the first counter-offer should engage with the opening offer in the same spirit, and not be a provocation.  I have often urged a party to think again, in the interests of advancing their case and not setting it back.  The mediator is well placed to do this.

Conclusion

Probate cases are among the most successful mediations in terms of settlement.  What helps is that the main issues are clearly isolated and agreed, in a succinct position statement that identifies them. Opening plenaries are generally best avoided because they risk aggravating an already emotional situation. Be clear about the benefits of settling, and the risks involved in not doing so – litigation risk, reputational risk, not to mention the delays and costs of going on to trial. Above all, be aware that the heart of most of these cases is emotional, and so be prepared to ‘go there’ and not avoid it in the hope that the mediation will settle anyway.

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