Alternative Dispute Resolution: The Only Place Where “You’re Right” and “I’m Right” can coexist

Imagine you are due to inherit a sum, and start planning what to do with the money but then you are are advised that a claimant is bringing a claim that could reduce or eliminate your share. Your reaction is likely to be one of frustration and potentially anger on the basis that the testator’s wishes are not being respected. It may be that your natural reaction is to push back hard and to litigate.

Despite these immediate and completely natural emotions, clients should be aware that proceeding straight to litigation is usually not the best way forward nor is it a course encouraged by the courts. In the recent decision of Churchill v Merthyr Tydfil CBC, the court determined that it had the power to order the parties to engage in Alternative Dispute Resolution (ADR) to try and resolve disputes.

The advantages of ADR are plentiful. The most common form of ADR is mediation whereby all the parties gather with a professionally qualified mediator to try to reach an agreement. Mediation can lead to a swifter outcome, be less expensive, and accommodate solutions that a court cannot order. It can also bring parties closer together not only to resolve their differences in a legal sense, but also in a relationship sense.

So instead of leaving the court to impose a decision as to whether a claimant should be entitled to a slice of your inheritance, ADR or mediation can be used to try and reach a compromise that everyone can live with.

Mediation is always recommended.

The court in Churchill considered the potential list of factors for a judge to consider when asked to exercise its discretion to halt court proceedings and order mediation (because one party is resisting):

• The type of ADR being considered;
• Whether the parties are legally advised or represented;
• Whether ADR is likely to be effective or appropriate without such advice or representation;
• Whether it is made clear to the parties that, if they do not settle they are free to pursue their claim or defence;
• The urgency of the case and the reasonableness of the delay caused by ADR;
• Whether that delay would vitiate the claim or give rise to or exacerbate any limitation issue;
• The costs of ADR, both in absolute terms and relative to the parties’ resources and the value of the claim;
• Whether there was any realistic prospect of the claim being resolved through ADR;
• Whether there is a significant imbalance in the parties’ levels of resource, bargaining power or sophistication;
• The reasons given by a party for not wishing to mediation: for example, if there had already been a recent unsuccessful attempt at ADR; and
• The reasonableness and proportionality of the sanction, in the event that a party declined ADR in the face of an order of the Court.

It should be noted that the court stopped short of ordering mandatory mediation in every case. If there is no genuine desire amongst the parties to reach a settlement or if in the exercise of its discretion, the court considers that ordering the parties to engage in ADR will simply serve to protract proceedings without producing any tangible benefits, it will likely allow the parties their day in court.

Despite this, as Sir Geoffrey Vos stated in Churchill, “even with unwilling parties, mediation can often be successful”. Litigants should be open- minded and try embrace the flexibility of non-court based remedies at all stages of a claim as a means of settling a dispute.

Charlie Gavriel is a trainee solicitor in the private client team assisting on a range of matters including estate planning and administration, wills, LPAs, will challenges and claims under the Inheritance (Provision for Family and Dependants) Act 1975.