A charity approach to ADR in contentious probate cases

This year marks 25 years since Lord Woolf introduced 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.

A 37% increase in the use of caveats over the last 2 years, and surveys indicating that 1 in 4 people would challenge a Will, suggests that contentious probate is on the rise – what does that mean for Cancer Research UK (CRUK), where around one third of our income comes from gifts in Wills, and how do we approach ADR as a way to resolve disputes?

While ADR can take many forms, mediation is one of the most common methods. At CRUK, we have been involved in face to face and virtual mediations and, subject to a few preconditions, we are generally keen to mediate.

Merit

If there is no apparent merit to a claim then we will be as robust in our defence as possible, bearing in mind potential costs penalties of refusing to mediate. Statutory obligations heavily restrict our use of funds, and so a speculative claim may not be appropriate for mediation as this may just cause delay and increase the costs.

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

Commerciality

Like any party to litigation, economics are an important factor for us to consider. There is a degree of “litigation risk” and so we will always weigh up the potential consequences, not just the merits and the value of the claim itself, but also in terms of the costs – both our own and those of our opponent. Early mediation can help to restrict both parties’ costs.

Bearing the economics in mind, we ask our legal advisors to give us key parameters for settlement at mediation. These will reflect on the costs to date, the costs of mediation, the saving that may be made against the costs of continuing with the litigation and, of course, the potential value of the claim.

Our team have Delegated Authority so that an appropriate member of staff can make decisions on behalf of our Trustees. Setting parameters, and having internal agreement to them, 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, just as brand identity is important to a multi-national corporate business.

As a result, we reflect on whether CRUK’s involvement in the case carries a reputational risk and 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?

Generally, we have had a positive experience with mediation. Having a clear strategy in the lead up, 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.

Find out more about legacy giving at Cancer Research UK by visiting cruk.org/legacy