Mediations are intensely structured negotiation sessions.
In wills litigation matters, mediation has a claimed success rate of between 85% and 90%.
Mediations often succeed where negotiations fail because of the rigorous structure imposed. All basic mediator training is training in that structure. All good mediators keep an iron-type grip on the structure – only very experienced (or very foolish) mediators depart from the structure.
There are five basic elements to that structure.
FIRST, there is the mediation contract, which has to be signed by all participants before the mediation commences. The mediation contract stresses the independence of the mediator and the confidentiality of the process. Confidentiality means that anything said in the mediation cannot be repeated outside the mediation under any circumstances.
SECOND is the open session. All parties meet together with the mediator. The mediator will explain again the confidentiality of the process and the mediator’s independence will be stressed again. The mediator will explain the two rules for the open session – nobody is permitted to interrupt when another person is speaking, and nobody is permitted to call another person names or denigrate them in the open session. The barrister for the person wanting to be included in the will then speaks and says why. The barrister for the estate (defending the will) then speaks explaining why not. The mediator will often have the solicitors present inform everyone of the costs incurred to date and the expected costs if the matter does not settle at mediation but goes to trial. Using a whiteboard, and deducting legal costs at each stage, allows the mediator to demonstrate to everyone just how much money is being argued over.
The THIRD step involves the mediator meeting separately with the parties. The mediator is a lawyer experienced in this area and will play “devil’s advocate”, testing each party’s stated position against the reality of the current law as it is known.
The FOURTH step involves the mediator conveying offers and counter-offers from one camp to the other, and back again.
The FIFTH step involves the signing of a formal, written settlement agreement. Once everyone has reached agreement, the mediator will not let them leave the mediation until all relevant people have signed a written agreement that disposes of all issues in dispute – from who gets the family photographs to how much money will be paid to each party.
During wills litigation mediations, it is usually only the barristers for the respective parties who speak. It is not necessary (or usual) for the clients themselves to say a word in the open session.
There is another question in this series which deals with why mediations are so successful in this area of wills litigation.