A conversation can be better than a court case in executry disputes

Death, as the saying goes, is one of life’s certainties. But what happens after a death, particularly when it comes to sorting out a loved one’s estate, can be anything but straightforward.

We are seeing a noticeable rise in executry disputes, both north and south of the Border. These can be disagreements over wills, inheritances and the administration of estates. These are often messy, emotional and, if taken to court, can be expensive. But there could be another way. One that may be kinder, quicker and usually more cost-effective: mediation.

So what is mediation and why should it be on the radar for anyone involved in an executry dispute?

​Stephanie Hepburn is a Partner, and Head of Private Wealth Disputes, Shepherd and Wedderburn

Mediation is a process where an impartial third party (the mediator) helps those in a dispute to have a conversation. It’s not about deciding who’s right or wrong. It’s about opening up a dialogue in a structured setting, with the aim of reaching a solution that everyone can live with which can be tailored to individual needs and the unique dynamics of the relationships involved.

In executry disputes, mediation can be particularly powerful. Tensions are often high, and emotions are usually a factor, often between close family members.

The dispute might not be about money but driven by personal conflict or resentment which has been brought to a head after the death of a loved one. Mediation gives people the space to talk about what’s really going on. It can help preserve – or at least soften the breakdown of – fractured relationships in a way that court action may not.

From a practical point of view, mediation is usually far quicker and cheaper than litigation. Court action can sometimes take months, even years, and costs can easily spiral and eat into the very estate that everyone is arguing over. Mediation, by contrast, can often be arranged within a matter of weeks and resolved in a day or two. It can also help parties reach solutions the court might not be able to offer.

Of course, mediation isn’t always suitable. If someone is being unreasonable, is unwilling to compromise or refuses to engage, it might not work. There are also some cases where court action is necessary or unavoidable, particularly where a legal right needs to be established or where there is a complex legal question to be answered.

But in appropriate cases, the Scottish courts might encourage parties in executry disputes to consider mediation before going full steam ahead to a hearing, although unlike in England and Wales, the court cannot impose any cost sanctions for unreasonably refusing to mediate.

Your lawyer can play an important role in mediation. They can recommend a suitable mediator, help you prepare for the mediation, advise you on your rights and options and any legal or tax implications of a proposed settlement, making sure it is workable in law, and fair in practice.

So, if you find yourself in the thick of an executry dispute, or can see one on the horizon, speak to your lawyer about all the options available to resolve these and whether mediation could help. It might not just save you time and money, it might also save relationships from long-term damage. That in itself is usually worth a conversation.