I'll see you in court! A charity approach to ADR in contentious probate cases

This year marks 25 years since Lord Woolf introduced Alternative Dispute Resolution (ADR) to mainstream civil litigation in England and Wales.

The contents of his 2007 report were embodied in the Civil Procedure Rules which came into effect in 2008. The main thrusts of Lord Woolf’s report were around reducing the cost, and time taken, for the resolution of a dispute. Litigation should be avoided where possible, the use of ADR should be increased, litigation should be cheaper, and more accessible, it should be less complex, less time-consuming and therefore lead to swifter justice.

Given a 37% increase in the use of caveats aimed at blocking probate over the last 2 years, and survey results indicating that 1 in 4 people would bring a challenge against a Will, it seems that contentious probate is on the rise – what does that mean for a charity like Cancer Research UK, where around one third of our income comes from gifts in Wills, and how do we approach ADR as a means to resolve disputes?

While ADR can take many forms, mediation is one of the most common methods. At Cancer Research UK, we have been involved in numerous mediations, both face to face and virtual. Subject to a few preconditions, considered below, we are generally keen to mediate.

Merit

In the broadest sense, because there can be costs implications of refusing to engage in ADR, if there is no apparent merit to a claim then we will want to be as robust in our defence as possible. Statutory obligations mean charities are heavily restricted when it comes to using funds and so a claim which appears to be entirely speculative may not be appropriate for mediation as this will, potentially, just slow things down and increase the overall costs.

Where there is a degree of merit to a claim, then we would consider mediation. This is because if there is some merit, then we want to reach a compromise as soon as possible and mediation, generally, will short-circuit the litigation process. 

Commerciality

Like any party to litigation, the economics of the dispute are an important factor for our charity to consider. Even a very strong case will be accompanied by a degree of “litigation risk”, and so we will always weigh up the potential consequences of litigation, not just in relation to the merits and the value of the claim itself, but also in terms of the costs – both our own and those of our opponent.

An early mediation can be a very useful tool to keep a lid on both parties’ costs. Bearing the economics in mind, we look to our legal advisors to give us key parameters for settlement at a mediation. Those parameters will reflect on the costs to date, the costs of the mediation itself, the saving that may be made against the anticipated costs of continuing with the litigation and, of course, the potential value of the claim itself.

Like all charities, we have a strict policy of Delegated Authority so that an appropriate member of staff can make decisions on behalf of the Trustees. Authority is broadly linked to value and so setting parameters in advance, and having internal agreement to a settlement on that basis, avoids any difficulty in obtaining agreement to settlement terms at the mediation itself – particularly as a mediation can often run on until the late evening…

Reputation

As a national charity, with a global presence, our reputation is very important in just the same way as brand identity is important to a multi-national corporate business.

As a result, whenever we are faced with litigation, our team must bear in mind the facts and nature of the dispute, and whether Cancer Research UK’s involvement carries a reputational risk. In some cases, this can be a determining factor in how we approach the litigation.

In difficult cases, our legacy administration team will work closely with our press team to ensure that appropriate messaging is prepared, and we are ready to act, or react, as necessary.

For or against?

We have a broadly favourable view of mediation and, generally, we have had a positive experience. We use this process in most litigation cases now – except those where there is, in our opinion, very little or no merit.

Having a clear strategy in the lead up to mediation, and some clear red lines for the mediation itself, are key to the process being a success. Where it is a success, then it is usually a more positive experience for both parties – costs are reduced, emotions are kept in check, stressful Court appearances are avoided, and matters are resolved sooner.

While Lord Woolf may not have anticipated mediations taking place virtually, which, by the way, we also find to be a favourable development in saving time and costs, the introduction of ADR certainly changed the landscape of litigation.

Together we will beat cancer.

Rod Etherington, Legacy Management Specialist