30 November 2022 by Grace Gannon

Compulsory mediation for small civil claims

In August 2022, the Ministry of Justice (MoJ) proposed legislation which would require parties in civil cases claiming £10,000 or under to attend a compulsory, free, one-hour mediation before their case could reach a hearing before a Judge.

It is predicted 272,000 people will be able to access free mediations through the scheme.

With an ever-increasing backlog of cases in the civil courts, exacerbated by the Covid-19 pandemic, the MoJ is looking for ways to promote alternative despite resolution (ADR) in an attempt to release some of the burden on the courts.

What is mediation and what would the compulsory mediation proposal look like?

The mediation process usually involves situating the parties in separate rooms, so they do not have to see each other or even address one another directly, while an independent mediator moves back and forth between them, with the aim of reaching an agreement and resulting in a financial settlement.

Mediations can even take place remotely, via online meeting platforms such as Zoom, where the parties remain separate in ‘breakout rooms’, and the mediator goes back and forth to each virtual room.

The proposed compulsory mediation will see parties referred to a free, one-hour mediation over telephone, with a professional mediator provided by the HM Courts and Tribunal Service, who would speak to parties separately and try to reach a settlement agreement.

Benefits of mediations for contentious probate disputes

The number of inheritance disputes is rising. In 2020 alone, over 10,000 caveats were submitted to the Probate Registries to prevent a Grant of Representation being obtained in an estate due to an ongoing dispute over a Will.

This can be attributed to several factors, such as the national increase in generational wealth, higher property prices and blended families. The Covid-19 pandemic has also had an impact; an increase in deaths (and unexpected deaths) leads to more inheritance claims, and the effect of the 2020 Video Witnessed Wills legislation, which has now been extended until 2024, could potentially leave more vulnerable people open to abuse.

Family and inheritance disputes can benefit hugely from the mediation process, particularly where there is animosity between the parties. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 are especially well suited to mediations where parties are concerned about rising legal costs being incurred especially in smaller estates.

Aside from costs, mediations protect the parties from the risk of going to trial and any potential adverse publicity.

Lastly, inheritance disputes can be a difficult time for family members who have lost a loved one, and so mediations can be a very helpful tool for the parties involved to communicate their position, be listened to, and come to an agreement. The prospect of ongoing family relationships can be preserved through the mediation process, especially where an agreement is mutually agreed by all parties, rather than having a ‘winner’ and a ‘loser’ at trial. The parties therefore have the opportunity to draw a line under matters in a binding settlement and move on.

If you are involved in a Will or probate dispute and would like advice on mediations, please contact our Disputed Wills & Trusts team.

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