Where there’s a will-related dispute, there’s a way to resolve it

This article was first published in The Herald.

The number of legal disputes over wills has increased significantly in recent years. Disagreements are an almost unavoidable fact of life, but long-lasting family fall-outs don’t have to be. While litigation through the courts is sometimes the most effective way to bring a will dispute to a decisive close, it is not the only option. There are various other Alternative Dispute Resolution methods that can be used, and this article looks at two of them, both of which can be a quicker and more positive way forward: mediation and early neutral evaluation. The former is the better known, and has been frequently used for quite some time, but the latter has been on the rise in recent years.

Early neutral evaluation is where a neutral third party – often an experienced legal expert or retired judge – reviews the evidence and gives an opinion on the likely outcome if the dispute goes to court. The parties can decide in advance whether that opinion will be binding. Even when it is not, the process can help everyone understand the strengths and weaknesses of their case and create a realistic basis for settlement. This can encourage an early resolution that avoids court proceedings.

Mediation is different. Rather than bringing in someone else to advise or to decide who ‘wins’ and who ‘loses’, it is a guided process in which the parties work with their lawyers and a mediator to find a solution that works for everyone. So, rather than ‘outsourcing’ the decision to a court or an individual, people work on the problem together. This can lead to imaginative solutions that a court might not be able to order. And because it doesn’t result in one ‘winner’ and one ‘loser’, agreements made in mediation can be more likely to hold, and to genuinely bring the dispute to an end.

In my experience, the process is not always comfortable but that is part of its value: it can give people the chance to air their grievances in a confidential forum, and, where it is needed, offer an apology. This can clear the air, change the tone of the mediation, and allow a resolution to be reached that everyone can live with.

The person guiding the process should be a trained and skilled mediator, whose fee is usually shared between the parties or met by the estate, and this approach is often both cheaper and quicker than litigation.

Finally, there’s another -ation that can stop disputes happening at all: conversation. Often the root cause of a dispute is people being surprised by the contents of a will, either because nothing was talked about in advance or because their understanding of what the deceased intended has not been carried out. Open discussions that involve everybody with an interest, and in which everyone has a chance to air their views, are the best way to avoid this situation.

It’s much better to have a difficult discussion now than a bitter dispute after it’s too late.

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