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28 November 2019
Issue: 7866 / Categories: Features
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Med-Arb: a successful combination for beneficiaries?

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Dr James Behrens considers the pros & cons of evaluative mediation in resolving trust & estate disputes
  • Should mediation be a facilitative, not an evaluative, process?
  • A mediator is not being paid to give legal advice.

There are many reasons to use mediation for trust and estate disputes. Mediation avoids frittering away the trust assets through litigation, and so preserves them for the beneficiaries; it helps to avoid any escalation of family conflicts; it aids in preserving long-term relationships between the trustees and the beneficiaries, as well as the relationships between the beneficiaries themselves.

This can be achieved thanks to the privacy, informality and confidentiality of the mediation process and also because of the flexibility in the types of solutions which mediation can achieve. For example, when it comes to varying the trust to obtain a tax advantage, there is much to be said in favour of using it. Also, a refusal to mediate may lead to adverse costs consequences in subsequent litigation. A party who refuses to mediate and subsequently

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