CONFLICT RESOLUTION: MEDIATION, MENTORING & COACHING

Conflict is a normal part of life. This is never more true in a family. Most of us look on in envy and wonderment when the Christmas ads come on showing us all a version of 'family' we never had.

Perceived favourites. Perceived bullies. Perceived manipulators. Perceived lay-abouts. The Deserving versus The Undeserving. The Responsible One. The Spoilt One. The Uncaring One. The One who always got everything their own way. That's the reality, despite what we might post on our socials, and despite that we'd still probably give our sister a kidney if they needed one. Because we're the Responsible one.

Family dynamics matter if you are going to find your own resolution to your dispute. Often it is the conflict of two or more core values which is stopping the parties moving forward. A court does not have the time or the authority to explore core values of the parties or their needs outside of the written rule-book. But we can. And you'll probably learn something about yourself that will help you navigate life better when you know more about what drives you.

Mediation is about the participants controlling the outcome, no longer clashing swords between a right and a wrong. Instead, we're exploring. We're aiming to find a solution that offers a better alternative than a legal battle where, win or lose, all will likely end up wounded emotionally and financially. 

Settlements are rarely about purely the money. Buried pasts rise to the surface of the discussions. Sentimentality becomes far more than a point of principle. Emotions are heightened and fond memories need to be preserved with relics of the past. Grudges and perceived slights are often the barrier to overcome in any settlement that both parties can live with. 

In many cases (especially when dealing with financial provision claims) there isn't enough court case precedent to offer very accurate predictions on a court decision. Even if you could, it's shifting-sands-territory during the 12+ months of a litigation dispute. 

As examples, late 2024 saw a huge shift in costs with success fees no longer being recoverable, and a case on 'lack of knowledge and approval' changed the landscape for disputes around Will invalidity. An evolving legal system can wreak havoc on your litigation strategy. Financial provision claims can change dramatically if the health of the applicant changes before the claim is decided by the Court. 

Contentious Probate law is unpredictable, always evolving and with the average case taking two years from from lodged Claim form to judgment.

When I am instructed to act as the solicitor for a party with an inheritance dispute, I reassure them that 90% of all cases I have come across settle before they reach the proverbial court steps. Around half settle at the early stages of litigation without any proceedings being issued. 

The main reason for settlement is pragmatism and mediation. If you / your opponent is not a sociopath, then neither of you will enjoy a court battle. Costs, worry and time aren't fun. There's no way around the misery, only crawling your way to the bitter end of it. 

"But I have an excellent case. Why should I compromise just because they've spouted a load of rubbish?" 

12 people listen to evidence, confer and deliver a guilty verdict. Sometimes those 12 people turn out to be wrong, but the damage has been done. Judges have their decisions overturned and sometimes lawyers don't agree with their decisions. Juries, judges, people... We're all human and we all make mistakes. We disagree. 

So, even with the strongest of cases, you can never know for sure how your dispute will be resolved by the Court. Lawyers can give you their views on merits, or quantum, but they'll always be caveated with what we call a 'litigation risk'. I've rarely seen a barrister's opinion give merits higher than 80% in my clients' favour and that is when I think our opponent is running a hopeless case. 

"But I want a judgment so I can tell others I was right."

Sure you do. I'd want this too if I felt wronged. But will it help that much, really? Or are you just providing entertainment to others at a huge cost to yourself? After the judgement declares a 'winner', there'll be speculation. Was the winning party really right? Or just 51% right? Was the winning party right because the judge just missed the point? Might there be an appeal lodged? Did one party perform better than the other on the day? Did not sleeping for three days affect your 'performance' in cross-examination? Did they get lucky? Win by the skin of their teeth?

Will the judgment really resolve anything? Or will money just change hands? Will money even change hands? What's the solvency of the losing party? Will recover of the judgment debt and costs be another legal battle?

"I want them to pay my costs. It's all their fault that we've ended up here."

But will they really pay all your costs if you go through to a trial? If you've a lawyer acting for you, they will likely have explained to you the likelihood of recovery of 100% of your costs. They will have probably told you its not likely. 

its important you understand your liabilities to costs and the chances of recovery of costs at all stages of your litigation. Ask your lawyers, or use google or AI to explore 'standard costs' and 'indemnity costs'. Chances are you'll conclude recovery of all your costs are going to be slim. I agree it's not fair. But when you argue with reality, you usually don't come out of it well. You may be able to illustrate to the Court that you did all you could to settle, compromise and you have a cast-iron case. But maybe the Judge will decide all of that isn't important and order much lower costs than you'd hoped. Sometimes costs can end up more significant than the dispute itself.

"They are so unreasonable. They will never agree to mediation, or will just pay lip-service to it."

Alternative Dispute Resolution for inheritance disputes is now integrated into our court system. The courts recognise that legal battles can be emotionally draining, time-consuming, and costly, with no guarantee of victory. Parties may face penalties if they are not realistic and do not explore alternative dispute resolution options before proceeding to court. 

Conflict can be managed by continually evaluating the dispute. This will serve you best and will probably avoid the time and expense of a court process, or at least ensure you are not in the firing line of the Court's wrath for not engaging in any alternative process for conflict resolution. 

A secret: you don't need to go the whole hog in mediation. Sure, it can great to resolve everything all at once, but a great way to dip your toes into mediation can be to mediate on one issue rather than the whole caboodle. Perhaps begin with a simple mediation that only deals with, say personal items. This can get parties talking, exploring and familiar with mediation and ensure no-ones just paying lip-service to the process. Then if common ground can be found on round 1 of the mediation, a new date can be set to deal with the more substantive matters. If you are interested in exploring a simple mediation first, then you might want to try my Hump Day Wednesday offer or book half a day mediation.

I believe that the only fights you truly win are the ones you don't have. And anyone over the age of 50 (like me) has likely less than 2,000 weeks left on this planet. If you're over 60, and have lived a stress-fuelled life, you might be lucky enough to have another 1,000 weeks on this planet. Just 1,000 weeks left! Yikes. When you work out the time you have left, what of your own personal values are you prepared to compromise on to make the most of your time left on our planet? 

Examples of how mediation can work for the parties when a judicial decision cannot: 

• A family member with means might be happy to accept less of the proceeds of a family home if only the parties can put off selling it for five years. 
• A son who needs a car, and funds, immediately  might be willing to then allow the intestate-Deceased's co-habitee to reside in his father's house for a small rent and agree not to sell for three years. His priority is immediate funds and the car. 
• A distant 'windfall' relative might be more charitable to the Deceased's close friend when through exploratory mediation it becomes clearer to them that the friend was not manipulating their Aunt but actually looked after her, and saved much of the inheritance by the Aunt not having to go into care.  

All facts are different. All solutions are different. That's the magic of mediation. There are so many shades to what is wrong, right, fair, equitable, pragmatic, reasonable, honourable, ethical and true. 

It takes courage to meet your inheritance conflict head-on. When you do, the opportunities for lasting solutions are empowering and could enhance the rest of your life. 

My role as a mediator is to help you explore solutions. My aim is to save the participants the turmoil of a full blown court process, along with the hefty legal bill. 

Money can’t guarantee peace, but investing in the cost of mediation might. Parties that choose to consider mediation often create greater harmony for their future family relations.