I am not convinced that owner/managers of SME’s understand this.

The following is a brief extract from my book, the 2nd Edition of the Contentious Probate Handbook (2025), published by the Law Society’, which contains a chapter about ADR including a detailed discussion of both Mediation and Mediation Advocacy.

These points apply equally to Commercial Mediation.

‘In the experience and opinion of the author, the cut and thrust world of trust and estate litigation has very little to do with abstract notions of justice, and is actually more about perceptions and calculation. So, unless a party needs a court determination to move forward, or the court must be involved, i.e. because the case involves children or other vulnerable beneficiaries, then why not do a deal instead? In the author’s experience, there is nearly always a deal to be done.

Paradoxically, while a claimant may have gone to court or threatened to issue proceedings because they are being ignored or stonewalled, the voices in the court room are not those of the parties, but of lawyers and judges who have no actual ‘skin in the game.’

Consequently, how participants speak to each other in a mediation, either directly, or through their legal representatives or the mediator, is an opportunity to show respect by allowing the other to be heard. That can move the parties along from deadlock about their respective positions to doing a deal in their mutual interests. The skill of allowing a participant in mediation their voice, i.e., the right to be heard, is linked to both ‘how you talk’ and to ’empathetic listening’, because to switch the dynamic from ‘confrontation’ to ‘collaboration’, you must first show a person that:

(a)   he has been heard; and

(b)   you understand his position, and the underlying reasons.

The unifying factor in all probate and trust disputes is the composition of the estate/ trust asset pool, and its value. It is not uncommon for litigation costs to exceed the value of an estate. Therefore, the earlier parties in dispute become participants in a process of negotiation, the more likely it is, that each will receive a slice of a larger pie (i.e. of the estate/trust fund) if the dispute settles at or shortly after mediation.

The overwhelming majority of contentious probate/trust disputes never reach trial, because parties agree the structure and terms of a legally robust compromise. ‘The overall success rate of mediation remains very high, with an aggregate settlement rate of 92%.’ (Google – Tenth-CEDR-Mediation-Audit-2023.pdf). This figure is for all civil mediations.

Mediation may also be an opportunity to transform an acrimonious probate/trust dispute into a joint-problem solving exercise, by applying estate planning principles to discover and unlock tax-efficiency post-death, resulting in the enlargement of the estate/trust fund pie for settlement.’