Mediation is a method of dispute resolution whereby a neutral third party Mediator assists the parties to work towards a negotiated settlement of their dispute. The overriding purpose is to reach an early lasting settlement, avoiding the time, cost and general disruption that tends to be caused in conventional court proceedings.
The Mediation process tends to be more flexible than traditional court proceedings because the parties have greater control over their destiny. At present the process is voluntary and confidentiality is maintained throughout, which means that the dissemination of any commercially sensitive material (including the terms of settlement itself) can be controlled.
The role of the Mediator is not to make any determination of conflicting evidence or of legal principles or advise either party as to their respective positions. The sole role of the Mediator is facilitative to put in place a structure to help the parties work towards a settlement.
Mediation is an entirely voluntary process and remains so until such time as a binding settlement is reached.
Why Use Mediation?
It is often said that Mediation produces win-win solutions. Here are some of the reasons why Mediation is preferable to Court proceedings:-
Timing - a Mediation can generally be organised within a matter of weeks; Court Proceedings can take years. A Mediation can be held before Court proceedings are commenced or before a dispute has escalated out of control.
Cost – a Mediation generally involves preparation of a few days plus up to a day for the Mediation itself. Court proceedings are renowned for a significant cost outlay.
Confidentiality – A Mediation is entirely confidential, and the parties can agree to keep the outcome confidential and so avoid setting unhelpful precedents . Court proceedings are in general conducted in the public spotlight unless the Court orders otherwise.
Stress – Court proceedings can be stressful and time consuming. Mediation is more informal, and the Mediator will attempt to redress any imbalance between the parties to ensure that a party who is unfamiliar with dispute resolution procedures is on an even footing with a more seasoned litigator.
Flexibility and stronger outcomes – A Mediation traditionally will produce an outcome for both parties that is win-win. Court proceedings tend to produce either a win-lose (where there is only one winner) or lose-lose outcome (where neither party comes away with a positive result). A win-win solution makes it easier to preserve good working relationships between the parties or alternatively it can make the termination of relationships more amicable. A settlement can for example include provision for public statements or an apology, but for instance in a professional negligence claim, in a way that enables a professional reputation to remain intact. It can also lead to agreed structured payment terms, or the restructuring or renegotiation of an existing contract, or wider business activity between the parties.
Settlement – The vast majority of mediations produce a settlement where the parties are genuinely committed to the process. If they do not settle, sometimes the effect of the Mediation is act as a catalyst for the dispute to resolve shortly afterwards.
Is proposing Mediation a sign of weakness?
The short answer is that it is not a sign of weakness. In fact it is quite the reverse. Experienced businesspeople tend to have a clear focus on what they want to achieve for their business and the dispute must be seen in that context.
Litigation can be uncertain and early resolution of a dispute through Mediation makes good business sense, particularly with the added control that the parties have over the outcome.
The Mediation Process
1. The parties either through their lawyers or directly between themselves will agree to jointly appoint a Mediator. The Mediator will be entirely independent of either party.
2. The parties will sign a Mediation Agreement, governing the conduct of the Mediation including for instance confirming that all discussions and documents used in the Mediation will be are treated as confidential and "without prejudice" and will not be used in later proceedings if the mediation does not settle.
3. The costs of the appointment of the Mediator are normally shared equally between the parties, as are the costs of any room hire and refreshments.
4. Before the Mediation, the Mediator will speak to the parties and agree what papers are to be available on the day and agree any other relevant arrangements. This is to help make best use of the available time at Mediation and to ensure that the parties understand their responsibilities.
5. The parties (including everyone with authority to settle the dispute) will attend the Mediation. The Mediator will invite the parties to make an opening statement to each other (this tends to be read from a script) and in this statement give its perspective on the dispute and highlighting points of particular concern. The parties will then break out into separate meeting rooms to hold a series of confidential meetings with the Mediator.
6. In those meetings, the Mediator will work with each party in turn in order to discuss the problem. These discussions are entirely confidential, and this encourages the parties to be frank with the Mediator with total confidence that any weaknesses or private concerns that they may have will be not be communicated to the other party, and with this spirit of openness, the Mediator can help each party to have a critical and realistic examination of their case in private session, helping each party in their understanding of the strengths and weaknesses of their position, as well as the potential for loss, expense, time, distraction and uncertain court outcomes.
7. During the course of the private meetings information may emerge which the Mediator may consider would be helpful to disclose to the other party in order to move the matter forward to settlement. The Mediator will first ask for the express authority of the party to disclose such fact, and this may help the parties to build a better understanding as to the root causes of the dispute.
8. The process will continue until either it reaches a settlement, either party decides to withdraw, or where it is clear to the Mediator that any impasse cannot be broken.
9. If a settlement is reached, a binding agreement will be drawn up that will be signed by the parties in a final joint session.
What Is Intestacy?
If someone dies without making a Will they are said to have died “intestate”. If a person dies intestate their estate and possessions are shared between surviving relatives according to fixed rules set by law. These are known as the intestacy rules.
Intestacy – What Happens?
If a person dies without leaving a valid Will then the law decides how their estate and possessions will be distributed.
Many people assume that if they die without making a Will, all of their assets and possessions will pass to their spouse or long term partner. Unfortunately, this is not always the case. It may mean that someone you do not wish to benefit from your estate will do so whilst others who you do wish to benefit, for example, stepchildren and co-habitees, will be left with nothing.
The following is intended to provide general guidance on the intestacy rules.
If a person has a surviving spouse, the intestacy rules depend upon when that person died.
BEFORE 1 OCTOBER 2014 and SURVIVING SPOUSE
If the person died before October 2014 and had a surviving spouse, then you need to establish whether or not that person had any children (known as issue – issue means all direct descendants of that person i.e. children, grandchildren, great children and so forth) and the value of the estate.
If the person had a surviving spouse and children, then provided the net estate is worth less than £250,000, the spouse inherits the whole estate. If the estate is worth more than £250,000, then the spouse inherits all personal chattels, receives £250,000 and has a life interest in half of the remaining balance (which reverts to the children on the death of the surviving spouse). The other half of the remaining balance passes equally to the children who survive and reach the age of 18. If a beneficiary who would have been otherwise entitled dies before the deceased but leaves children of their own then those children will inherit the share of their deceased parent.
If the person had a surviving spouse and no children and their estate is worth less than £450,000 then the surviving spouse inherits the estate in its entirely.
If the estate is worth in excess of £450,000, you will then need to establish whether the person had surviving parents, and if none, any surviving brothers and sisters, and if none whether those brothers and sisters had any children and so on. The surviving spouse then inherits £450,000 in addition to the personal chattels, and the balance of the estate is then divided in two with one half passing entirely to the surviving spouse and the other half passing to surviving parents equally (if two) and absolutely, and if none brothers and sisters equally and absolutely and so on.
Please refer to the section titled “no surviving spouse” and follow the table for the full list of potential beneficiaries.
AFTER 1 OCTOBER 2014 and SURVIVING SPOUSE
If the person had a surviving spouse and no children, their estate passes to their spouse in its entirety.
If the person had a surviving spouse and children, the spouse receives the first £250,000 of the estate and then the balance of the estate is divided into two. One half of the remaining balance passes to the spouse absolutely and the other half of the remaining balance passes to issue on statutory trusts. If a member of a class dies before inheriting then their children will inherit their deceased parent's shares.
NO SURVIVING SPOUSE
If a person dies and they do not have a surviving spouse, it does not matter when that person died, the estate will devolve in the following way.
If the person had surviving issue, those children or grandchildren receive the whole estate on statutory trusts in equal shares, and if there are no issue, the estate passes to a person’s surviving parents in equal shares. If no surviving parents, please refer to the table below.
To use the table below, which is provided as general guidance, if the answer is yes, look to the right of the chart as to how the estate devolves and only if the answer is no, move to the following line.
Do I really need a Will?
The simple answer is “Yes”. Every adult should make a Will preferably with a reputable firm of solicitors, and review it regularly, particularly if their circumstances change, such as they get married, have children or get divorced.
The main reason is so that you can decide who should benefit after your death rather than allow the above intestacy rules to decide it for you, as they may not suit your circumstances.
There are many benefits to having a Will:
- You decide as to who should benefit from your assets after your death, rather than allowing the intestacy rules to decide for you.
- You can name individuals, who can be professionals specialising in the administration of estates, to deal with your estate after your death. If you do not, this is determined by law.
- You can ensure that your estate is dealt with in a tax efficient manner.
- You are likely to reduce the possibility of any challenge to your own estate if you have a Will determining how you want your estate to be dealt with after your death. A solicitor will carefully document the reasons for your decisions and can advise as to possible challenges.
Other Points to note
If you are reading this guide because someone close to you has died without a Will, you must first determine whether you have any right to act and administer their estate i.e. act as personal representative. If you require assistance please do contact us.
If you are not entitled to act as a personal representative, or are not happy with the entitlement you have, we can advise as to whether it is possible to vary who benefits under intestacy.
If, under intestacy you feel that reasonable financial provision has not been made for you, then you may have a claim for increased financial provision under The Inheritance (Provision for Family and Dependants) Act 1975. Please refer to our separate guide for claims of this nature.
For any further information on intestacy or any other matter regarding wills, trusts or probate please contact our Private Client Department.
For further advice and help please do contact Dispute A Will on 0800 975 2166 or email via the contact page