Mediation as a remedy in trust and probate disputes: A review of the comparative approach for international lawyers

Abstract

Trust and estate law focuses backwards to determine the grantor’s intent and which parties are right or wrong under legal precedent. In the law of trusts, mediation is often the route chosen by the parties because it offers the most effective method of resolving disputes which arise when one party has deemed their property to be severed and the trustees are seeking mediation to resolve how assets should be divided. Alternative Dispute Resolution (ADR) generally refers to arbitration and/or mediation procedures. It offers the disputants an opportunity to circumvent some (or all) of the most complex, ineffective and costly elements of traditional civil litigation. While adversarial litigation is an expensive and very crude zero-sum game for the resolution of disputes, in areas of family relationships, private property and deceased's estate, ADR does not constitute extra-judicial proceedings. An arbitration agreement does not afford a defence to a court action, but entitles a party to apply for a stay of proceedings, under section 9 of the UK Arbitration Act 1996. This paper draws on UK and US examples and argues that facilitative mediation in trust disputes is especially suitable for ADR in contentious trust cases. It also considers whether the UK and Ireland could usefully adopt some of the US’s more developed and structured practices on ADR and mediation.