Practice and procedure—mediation—contentious trusts and estates
Produced in partnership with James Davies of New Square Chambers
Practice and procedure—mediation—contentious trusts and estates

The following Wills & Probate practice note Produced in partnership with James Davies of New Square Chambers provides comprehensive and up to date legal information covering:

  • Practice and procedure—mediation—contentious trusts and estates
  • Timing
  • Parties
  • The structure of the mediation
  • The structure and mechanics of the mediated settlement
  • Failure to settle

Mediation has grown in use as a form of alternative dispute resolution (ADR) in the UK since the Access to Justice Report. It continues to be urged upon parties as a form of ADR by the courts as part of the overriding objective under CPR 1.4(2)(e) and is to be considered by parties under the Practice Direction Pre-Action Conduct and Protocols. It is also addressed in the Chancery Guide, para 18.1.

Although the Civil Procedure Rules does not set out a specific pre-action protocol for probate and trust disputes, the Association of Contentious Trust and Probate Specialists has produced a Code, to assist practitioners in such disputes, stating that:

‘Parties and their legal representatives are encouraged to enter into discussions and/or negotiations prior to starting proceedings. The parties should bear in mind that the courts increasingly take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is in reasonable prospect. Mediation of probate and trust disputes may assist in achieving a compromise, particularly in relation to disputes between family members.’

In the Court of Appeal case of PGF II SA v OMFS Co, the trial judge decided that silence in the face of a proposal to mediate was usually unreasonable. The contents of the ADR Handbook were firmly endorsed. The defendant who had remained silent was

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