As a firm, IDR Law are very keen on resolving disputes without going to trial. We’ve asked specialist mediator, Samantha Lowe, of Concentus Mediation, to share her some of her experience of mediation.
Sam’s background as a solicitor brings over 15 years of experience in mediation and Alternative Dispute Resolution. She has led over 150 mediations to date and is ranked as a Leading Mediator in Legal 500 2021 and Chambers and Partners 2021. She is also listed as one of 7 specialist trust mediators in the UK in the Chambers and Partners High net Worth Guide 2020.
Over to Sam…
I set up Concentus in 2016 having previously worked as a solicitor specialising in contentious probate. I first met Martin (founder of IDR Law) when we were representing opposing parties on an interesting 1975 Act claim many years ago!
My motivation for my business is a strong belief that the vast majority of contentious probate cases are capable of being settled by mediation.
In disputes over inheritance emotions are often a driving force as well as finances. Mediation creates the right environment for parties to be able to address these emotions – in a court environment people don’t often get a chance to work through any feelings associated with an inheritance claim.
It takes compassion and empathy to mediate effectively, recognising when parties need to get things off their chest. It can be really cathartic for parties to speak about the emotional issues associated with their case (such as an historical falling out with a family member). I leave parties to have a bit of time to process their thoughts and feelings if they are feeling emotionally charged, and then encourage them to move past those feelings when considering offers from other parties so their decision can be made with as much clarity as possible.
Every single mediation is different, and every single party is different. I weigh up the right amount of time to give each party to have that emotional release on the day. The earlier this can be done, the better it is for the parties to then focus on a solution-based day ahead. Of course that makes it sound much simpler than the process actually is, parties are all human at the end of the day balancing grief, anger and frustration with wanting to be able to move on and speak about the cold, hard commercial side of things.
The key to a successful mediation in inheritance disputes is allowing enough time for that emotional release yet reining parties in and keeping them on track to have productive commercial conversations to be able to reach an agreement. It requires empathy along with a firm and assertive approach to steer the parties in the direction of settlement.
To help parties decide on how to move forward in a negotiation, I often give a flavour of what it might be like in court, what a court might do, what might be asked of them in cross examination, but I always remain neutral. It is important that the mediator allows the parties to confidentially explore risk, on both a legal and commercial level but also on a personal level. These conversations take place confidentially with the mediator – the other party never being aware of what has been discussed – and really allow the parties to focus their minds on why they might settle and how they might settle. The aim being to ultimately result in an agreement.
Solicitors will usually draft an agreement on the day once all clients agree to a settlement. Having the document drafted and signed on the day of mediation (or very soon thereafter) brings clarity to each person and they can wake up the next morning knowing they’ve reached a settlement they can live with – I tend not to use the term ‘are happy with’ as I encourage clients to be realistic: there is always an element of compromise but if they can live with the agreement and it brings them a sense of relief to be able to move on with their lives, that in itself is a success.
At present, I hold a lot of online mediations via Zoom, where I create different virtual rooms for each party, and I can move between them (virtually). This approach works well (and was the only way to continue mediations safely during lockdown) as many people feel more comfortable in their home environment, and any worry associated with bumping into family members they’d rather not see is taken out of the equation. It also brings down the cost of the mediation as no travel expenses are incurred.
As restrictions ease, I will be starting to hold some face-to-face mediations again, usually at solicitors’ offices. Some clients prefer this approach but given the many advantages of online mediation to those involved in acrimonious inheritance disputes with family members, I have no doubt that online mediations will continue in the future as we navigate our way through the post pandemic world, and I’ll be continuing online mediations for a long time to come.