Divorce and remarriage, DIY wills, rocketing property values and fallout from the Supreme Court’s 2017 judgement in Ilott v Mitson – these are all drivers in the rising rate of inheritance disputes. Fortunately, mediation offers not only the chance of a settlement but also an opportunity for warring families to heal.

Understanding the family history

In my experience inheritance disputes are some of the most emotional and acrimonious mediations to manage. The fact that someone has engaged in litigation with a family member points to a highly charged situation and there can often be palpable hatred between the opposing sides.

It’s not always just about the will. Frequently, the testator’s sense of hurt and injustice goes back to their childhood and an underlying issue with a sibling or parent. That’s why I carefully question the parties at the start of the mediation to try to ascertain the family history. If I get a sense that the dispute is being driven to a large extent by past grievances I’ll try to work with that to see if, alongside settlement, some form of reconciliation is possible.

Behind-the-scenes preparation

With inheritance disputes I have to work harder pre-mediation than I do with many straightforward commercial or insurance type disputes. There needs to be careful discussions with the solicitors to get a better understanding of the relationship between the parties. It’s also important for me to be fully briefed on any requirements to keep the parties separate.

As part of the conversation, there will also be consideration of the parties’ requests to bring individuals – supporters, if you like – to the mediation. The problem with allowing people who aren’t parties to the litigation to be present is that they can wind the other side up. That’s something that needs to be managed. I’m a very direct mediator and I’m not afraid to make suggestions that I believe will benefit the overall objective of the process, which is to create a collaborative environment. Incidentally, inheritance disputes are well suited to remote mediation because the disputants can join from their own homes and don’t have to be physically together in the same building.

Reassurance and trust

The most important thing for me as a mediator is that the participants gain my trust and confidence. In private session, I’ll acknowledge that they’re embroiled in a horrendous situation and I’ll express sympathy for that. If I can build a rapport with the participants very quickly it helps to put them at their ease.

What you have to remember is that, unlike other types of disputes where you’re dealing with seasoned professionals who know what’s going on, almost invariably this is the first time these people have been involved in the civil justice system. And, frankly, some of them are terrified. It’s my job to reassure them that mediation is not a court process but a relatively informal and completely voluntary procedure. It’s a safe environment – confidential and without prejudice – for them to explore settlement.

Keeping parties apart

As a mediator, my job is to try to prevent anything from happening that might make matters worse. With an inheritance dispute, more often than not the parties are kept separate and there is no initial plenary session. I always put parties in individual rooms and see them individually first to get a feel for the mood, the relationships and any potential blocks.

That’s all very useful and it gives me the opportunity to evaluate the best way forward. I’m very much an intuitive mediator and I’ll make suggestions or direct the process dependent on what I think is going to work.

Arguments and fisticuffs?

I’m happy to say that parties have never actually come to blows during one of my mediations. I’m pretty adept at reading the situation and preventing that sort of escalation.

Shouting and banging on tables, yes. Fisticuffs, no. But the possibility is always there, of course.

I have to assume, until I’m convinced otherwise, that everybody has the potential to behave in a way that’s going to upset the other side and therefore set everything back. It’s vitally important that mediation begins with the possibility of the parties engaging in constructive dialogue.

Settlement and reconciliation

When families are at war the opposite side becomes the devil incarnate. But the beauty of mediation is that the process can be transformative. Sometimes shattered relationships can be rebuilt. If by the end of the mediation we’ve reached agreement and I sense a possibility for reconciliation I’ll always give the participants the opportunity to meet. There may be hugs and tears. Or the response may be ‘Yes, I’m open to it, but not yet.’ Of the inheritance disputes I’ve mediated I’d say a third of them have paved the way for rebuilding relationships.

There have definitely been happy endings where people have either shaken hands before we’ve all parted company or have agreed to speak to each other over the next few days. As a mediator, I’m always alive to the possibility of engineering such a positive outcome.