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In the context of an inheritance dispute, if you asked me “do I need to mediate?” my answer would be “more often than not, yes”. Or, at the very least I would encourage you to meaningfully participate in a form of alternative dispute resolution (ADR).
If you asked me in detail about why, I’d tell you:
The Court expects parties to engage in ADR.
It has long been the case that parties are encouraged to resolve disputes at the earliest opportunity. The Civil Procedure Rules (CPR) are clear that ADR should be a feature of any case from the outset. Likewise, the Pre-Action Protocol expects that parties will have tried to settle matters before proceedings are issued.
The recent case of Churchill v Merthyr Tydfil County Borough Council [2023] resolved the remaining academic ambiguity as to the Court’s exact powers in relation to ADR. The Court of Appeal helpfully confirmed that the Court can order ADR and give specific directions as to how this should happen.
Following Churchill, practitioners now await the forthcoming update to the CPR on 1 October 2024 which will:
- Provide the ability to “order the parties to engage in alternative dispute resolution” – see CPR 3.1(2)(o); and
- Include the positive obligation to promote ADR in the Overriding Objective with a failure to do so and / or to comply with an ADR order being explicitly relevant to any costs assessment under CPR 44.2(5)(e) – see CPR 1.1(2)(f).
It is more unattractive than ever to be the party who has refused to mediate without extremely good reason. There will always be narrow exceptions to the ‘rule’ but general cost concern, strength of feeling, difference in legal opinion and availability of information is unlikely to cut it.
The avoidant party can likely expect to receive the bill for their opponent’s litigation costs and forfeit the prospect of recovering their own. Commercial considerations must be a factor and the true cost of refusal assessed.
There can understandably be some scepticism around ADR from a client perspective – it appears to add a layer of work and time, introduce upfront costs and bring confronting situations to the fore. Such concerns are valid, but this often overshadows the benefits. ADR can usually be quickly facilitated, offer speed of process and flexible settlement options without having to see your opponent. The investment in ADR ‘buys’ certainty of outcome and a prompt conclusion with cost certainty. The same cannot be said for awaiting a Court hearing.
The adoption in the family courts of the term “Non-Court Based Dispute Resolution” in place of ADR will hopefully encourage a broader shift in perception to truly seeing the Court as a last resort and an end to paying lip service to attempts to engage in ADR. In the meantime, it remains the case that a refusal to engage in ADR is a bold and unwise position to adopt.
If you are faced with any inheritance dispute and have an queries about navigating ADR, please do feel free to contact Jasmine Ivory or a member of the Disputed Wills & Estates team.
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