Farra is a death administration assistant for UK families. Get step-by-step guidance for registering a death, applying for probate, notifying banks, and managing bereavement admin. From essential documents to practical checklists, Farra simplifies estate paperwork and funeral-related tasks so you can focus on what matters.
Most ways of resolving an estate dispute without a trial involve negotiating, with or without help. The best known is mediation: a confidential, without-prejudice meeting where a neutral mediator helps the family or other parties try to reach terms. No one can be forced to agree. Since October 2024 the court has had an express power to order parties to take part in alternative dispute resolution, and it must consider an unreasonable refusal when deciding who pays costs. Formal Part 36 offers carry their own costs consequences. A settlement of proceedings can be recorded in a court order, and needs the court's approval where a child or someone who lacks capacity is involved.
Disputes about a will or an estate are usually between people who knew and loved the person who died, and often with each other. Many are settled without a trial. This page explains the main ways that happens — mediation, other forms of alternative dispute resolution, and formal offers to settle — and what the court rules say about them.
This describes the rules in England and Wales, where civil court proceedings are governed by the Civil Procedure Rules (CPR). Scotland and Northern Ireland have their own court rules.
For the grounds on which a will can be challenged and how a claim runs, see our guide to contesting a will.
Alternative dispute resolution (ADR) means ways of resolving a dispute other than a court trial. The Practice Direction on Pre-Action Conduct lists:
There is no pre-action protocol specifically for will or estate disputes, so the general Practice Direction applies. It says "litigation should be a last resort", that the parties should consider negotiation or another form of ADR before starting proceedings, and that they should keep considering settlement "at all times, including after proceedings have been started."
GOV.UK describes mediation as "a flexible and confidential process used to settle a dispute between two or more people, businesses or other organisations." A trained, neutral mediator helps the parties talk, understand each other's positions and look for terms they can both accept. The mediator has no power to decide anything or impose an outcome.
GOV.UK describes the mediator talking "to both sides separately to hear their version of events, and, if agreed, may then bring all the participants together to talk". The parties do not have to be in the same room, and mediation can take place online. It "can take place at any time before your case reaches a hearing or trial at court", and if a claim has already started "the court can pause your case to enable you to do so."
GOV.UK notes that the Civil Mediation Council keeps "a searchable list of registered mediators and mediation providers".
Settling is always voluntary. Taking part in ADR is now a different matter.
Remarks by the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] had suggested that a court could not compel parties to mediate. In Churchill v Merthyr Tydfil County Borough Council [2023] the Court of Appeal (Sir Geoffrey Vos MR, Lady Carr CJ and Birss LJ) held that those remarks in Halsey were not binding, and that a court can lawfully order parties to engage in a non-court dispute resolution process, or pause proceedings for them to do so, provided the order "does not impair the very essence of the claimant's right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost." It declined to lay down fixed rules about when that will be appropriate.
The Civil Procedure Rules were then amended, from 1 October 2024, by the Civil Procedure (Amendment No. 3) Rules 2024, whose explanatory note says the changes respond to Churchill. The rules now say:
The usual rule is that the losing party pays the winner's costs, but the court can order otherwise and must look at the parties' conduct (CPR 44.2). Since October 2024 that conduct expressly includes "whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution" (CPR 44.2(5)(e)). The Practice Direction on Pre-Action Conduct also warns that silence in response to an invitation to ADR, or a refusal, "might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs."
Halsey remains the leading case on how that is judged. The Court of Appeal held that depriving a successful party of some or all of their costs for refusing ADR is "an exception to the general rule that costs should follow the event", that the burden is on the losing party to show the winner "acted unreasonably in refusing to agree to ADR", and that relevant factors include the nature of the dispute, the merits, other settlement attempts, whether the cost of ADR would be disproportionate, delay, and whether ADR had a reasonable prospect of success — with "no single factor" usually being decisive.
Estate disputes have their own costs rules too; see our guide to contesting a will.
Part 36 of the Civil Procedure Rules is a formal procedure for offers to settle. A Part 36 offer must be in writing, say that it is made under Part 36, and usually give at least 21 days for acceptance (CPR 36.5). It can be made before proceedings are issued. It is "without prejudice except as to costs", and the trial judge is not told about it until the case has been decided (CPR 36.16).
Its effect comes if the offer is not accepted and the case goes to judgment (CPR 36.17):
An offer to settle made outside Part 36 does not carry those automatic consequences, but the court must take into account any admissible offer to settle when deciding costs (CPR 44.2(4)(c)).
Before any claim is issued, a settlement is a written agreement between the parties.
Once proceedings have started, a settlement can be recorded in a consent order — an order made in terms the parties have agreed, marked "By Consent" (Practice Direction 40B). One common form stays (pauses) the proceedings on agreed terms set out in a schedule to the order (CPR 40.6(3)(b)(ii)); this is often called a Tomlin order.
Three rules are particular to estate disputes:
Negotiating or mediating does not stop time running for an Inheritance Act claim. That claim must be made within six months of the grant of probate or letters of administration unless the court gives permission for a later claim. People in that position commonly either issue the claim within time and mediate alongside it, or agree a "standstill" with the other side. For Inheritance Act claims the ordinary discontinuance rules do apply: under CPR 38.6 a claimant who discontinues is normally liable for the defendant's costs up to that point unless the court orders otherwise. See our guides on time limits for contesting a will and Inheritance Act 1975 claims.
A caveat stops a grant being issued while a will is disputed; see entering a caveat.
No official body publishes what it costs to mediate an estate dispute, how long mediation takes, or how often it leads to settlement. Figures found elsewhere online are not from an official source, and none is given here. Mediators quote for the individual case.
Sources