As I explain in paragraph 1.3 of my book, the
‘Contentious Probate Handbook’ (published by the Law Society in 2016), ‘From the outset, and throughout the conduct of the case, it is incumbent upon a practitioner to evaluate the client’s costs/risk calculus and the benefits of proposing/engaging in ADR. To obtain a quick indication you can roughly estimate the cost of your client getting what he or she wants (i.e. if he or she wins), and factor in the litigation risks. Even if your client wins, and nothing is absolutely certain in litigation, where an executor is entitled to an indemnity out of the estate for costs properly incurred, the capital value of the estate will have been diminished by legal costs and experts’ fees incurred in the litigation. Lose, and your client ends up in negative equity. Then compare the costs of ADR with the costs of a trial.’
While solicitors are the gateway to mediation, in practice there are 3 obstacles:
(i)          a participant [‘P], i.e. a lay client, may not understand that Mediation can save them money where it is an opportunity to transform the dispute into a joint problem solving exercise by applying estate & business succession planning principles to discover & unlock tax efficiency post-death, resulting in the consequential enlargement of the estate/trust fund pie for settlement &
distribution/administration;
(ii)        a mediation advocate [‘MA‘] may not understand that the most important person in the room is their client, i.e. because it is P‘s case; and that their job is to help P resolve the dispute in a cost-efficient manner, i.e. sooner rather than later; and
(iii)       the MA, may not be qualified as a TEP, or have sufficient knowledge of tax law & estate planning principles.
A mediation structuring technique which can help move the P‘s and their MA’s along the path to settlement in a face to face or online mediation, is for the mediator to make two pre-mediation zoom calls instead of one:
1st – with each P‘s MA (without their client present), to understand what brought the P‘s to the table and vice versa, what kept them away until now, e.g. lack of understanding about mediation/ psychological aversion & refusal by P to mediate; and

2nd – with each P in the presence of their MA (which would usually take place anyway to test the link in an online mediation), to enable:
(a)  each P and their MA to prepare to do a deal; and
(b)  afterwards for a conversation to take place between each P & their MA about how best to prepare to do a deal.
Please feel free to contact me if you would like to have a no-obligation telephone discussion about mediation. I have been invited
by the Law Society to draft a 2nd edition of the book, and in December will be drafting the chapter structure for submission to the Law Society for approval. This will include an expanded section on ‘efficient mediation’ & ‘effective mediation advocacy.’