A Spotlight on Executry Mediation - Sarah- Jane Macdonald and Mairi Adams

When dealing with the administration of a close friend or family member’s estate, emotions can often run high and the process can lead to conflicts among beneficiaries, even if the deceased made a Will. Disputes such as these can be extremely costly - both financially and emotionally.  

Executry mediation is a compassionate and cost-effective alternative to litigation, yet it’s use in Scotland is still fairly limited.

When Might Executry Mediation Apply?

There are a number of reasons why estate disputes might arise, such as:

·         Challenging validity of Wills;

·         Interpretation issues where Will terms are unclear;

·         Legal rights disputes; or

·         Arguments as to division of assets.

The list goes on.  Mediation can be an incredibly powerful tool in all these scenarios.  It can be more cost effective, save time, but most importantly it can facilitate more practical solutions.  What can be achieved is far more wide-ranging and flexible than the limited scope of a court’s decision. 

Is Executry Mediation Different?

The process mirrors standard commercial or family mediation – it involves a mediator who assists the disputing parties reach a mutually acceptable agreement.  What is different, however, is: -

·         the number of parties that can be involved;

·         understanding the “hats” that the parties wear; and

·         navigating through grief and complex emotions.

Multi-Party Mediation

Agreement cannot be reached with one beneficiary if it impacts on the share or interest of another.  Any executry mediation will therefore often involve numerous parties – the executors and all beneficiaries with an interest (not to mention the various solicitors representing each).  It can end up as a cast of thousands.

Multiple-Capacities

It can be further complicated where someone is both an executor and a beneficiary (and potentially a guardian or attorney for another beneficiary) and is attending a mediation in multiple capacities.  They need advised in each capacity, and to consider options for settlement wearing each of those hats.

Emotional Element

These disputes generally consist of some sort of family breakdown.  It is therefore not dissimilar to family mediation.  However, some parties may still be going through the effects of grief, which adds another nuance to the already complicated emotional powder keg.   Even with pre-mediation meetings, strong emotions may not surface until the day.

Should Executry Mediation be Structured Differently?

The process is largely the same - the day of a mediation typically beginning with an introduction from the mediator to ensure all attendees understand the process and the objective, each then has an opportunity to make opening remarks, before the parties breakout into their separate rooms.

That structure works.  However, the mediator will then have more rooms to navigate, and their role becomes more complex.  They must facilitate open communication and encourage understanding whilst juggling which room to attend and when.  This can cause issues where perhaps two parties are seeming to make progress, but another is left waiting.  Balance and timing are key.

It is not unusual for executry mediations to be conducted by more than one mediator, or to do the mediation over two days.  Using one or both strategies ensures all parties get ample opportunity to express their views and still have time to reach agreement without it being rushed.

Because of the emotional factors, a mediator with a background in mental health, social work, grief counselling, or similar can also be useful.  That is not to say that litigators-turned-mediators are not adept in these areas but having that unique skillset can be invaluable.

Why Don’t We Hear More About It?

Awareness of the benefits of executry mediation is growing and it is likely to become an increasingly popular choice to resolve estate disputes.  

Executry mediation is such an effective method for resolving estate disputes. It offers a more compassionate and practical alternative to litigation, whilst (potentially) saving time and money.  The process can help to bring about resolutions that reflect the various practical issues a court simply will not address.  There is a limited pool of those who practice as mediators in this space, but there are many well respected mediators who do and who can assist practitioners considering this route.

As more practitioners share their positive experiences with executry mediation, we may see a shift in practice, and perhaps it won’t be considered as “niche” in the future.

This blog is co-authored by Sarah-Jane Macdonald,  a Partner at Wright Johnston Mackenzie and Law Society Accredited Specialist in Trusts and Mairi Adams is a trainee solicitor at Wright Johnston Mackenzie. .