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Mediation is a facilitated negotiation: a neutral mediator helps the parties reach terms, but decides nothing. It is confidential and conducted without prejudice. The court can order parties to engage in it, and can penalise in costs a party who unreasonably refuses. No official body publishes a settlement rate or a cost for it, so this page quotes neither.
Estate disputes — whether about will validity, financial provision under the Inheritance Act, executor misconduct, or distribution of assets — are among the most emotionally and financially destructive forms of litigation. They often involve family members who must continue to relate to each other after the dispute is resolved. Mediation offers a way to resolve these disputes faster, cheaper, and with less collateral damage than a contested trial.
This guide explains how mediation works in estate disputes, when to use it, what happens in a mediation session, the costs, the court's attitude to mediation, and the practical steps to arrange it.
Mediation is a form of alternative dispute resolution (ADR) in which a trained, neutral third party — the mediator — facilitates negotiation between the disputing parties to help them reach a mutually acceptable settlement.
The mediator does not decide the outcome. Unlike a judge or arbitrator, the mediator has no power to impose a settlement. Their role is to:
The outcome is voluntary: nobody can be compelled to settle, and a party is free to leave a mediation without agreeing anything. Attending is a different matter — the court now has an express power to order parties to engage in ADR, so participation cannot be assumed to be optional.
Mediation is conducted without prejudice, so offers made in it are generally not admissible in later court proceedings and making one does not weaken a party's case. The privilege is not absolute: it does not cover the settlement agreement itself, and the courts recognise exceptions — for instance where the question is whether a settlement was in fact reached, or where there has been unambiguous impropriety.
Contentious probate cases are particularly well-suited to mediation for several reasons:
The position has hardened. Rule 1.4(2)(e) of the Civil Procedure Rules now lists, among the court's active case management duties, "ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution". Rule 3.1(2)(o) gives the court an express case management power to "order the parties to engage in alternative dispute resolution".
Separately, an unreasonable refusal to engage can be reflected in costs. In Halsey v Milton Keynes General NHS Trust [2004] the Court of Appeal held that an unreasonable refusal to mediate could result in a costs order against the refusing party — including against a party who had won. Older summaries of Halsey also say a court cannot compel parties to mediate; the rules set out above have since overtaken that.
In practice, most contentious probate solicitors will write a formal invitation to mediate before issuing proceedings, and courts will often stay proceedings at an early stage to allow mediation to take place.
A typical estate mediation proceeds as follows:
A typical estate mediation lasts one day, though complex multi-party disputes may require more time. The parties and their legal representatives attend in person (or increasingly by video conference).
No official body publishes a scale, average or range for the cost of mediating an estate dispute, and no court fee is set for it. An earlier version of this page carried figures for the mediator, the solicitors, the venue and a contested trial; none of them came from an official source and all have been removed rather than restated.
What the cost is actually made up of:
Mediators quote for a specific case, so the way to establish the figure is to ask two or three accredited mediators for a quote. The Civil Mediation Council maintains a directory of accredited civil mediators.
Mediation can take place at any stage of a dispute — before proceedings are issued, after issue but before trial, or even during a trial. The most effective time is usually:
Mediating does not stop the six-month Inheritance Act deadline running — nothing does, short of the court's permission for a late application. The two ways of dealing with that are to issue the claim within time and mediate alongside it, or to agree a standstill with the other side. Issuing carries its own cost: under CPR 38.6 a claimant who then discontinues is liable for the defendant's costs to that date unless the court orders otherwise. See our guide on time limits for contesting a will.
For the full contentious probate landscape, see our introduction to contentious probate, our guide on the grounds for contesting a will, and our guide on costs in contentious probate.
For the non-contentious estate administration, see our estate administration checklist and our complete UK probate guide.