When Families Don’t Talk About Inheritance: Mediation’s Role in Containing the Fallout

A recent article published by STEP highlighted what many contentious probate practitioners already know from experience: inheritance disputes are increasing, and poor communication within families is often at the heart of the problem.

According to STEP’s findings, a growing number of disputes are being fuelled not simply by the absence of estate planning, but by a lack of clarity, expectation management, and open discussion before death. That will not surprise many solicitors working in this field. Few claims emerge in a vacuum. Long-standing family tensions, assumptions about “what Mum intended”, concerns about capacity or influence, and unresolved sibling dynamics often sit beneath the legal arguments.

As mediators, we cannot prevent these situations from arising in the first place. By the time a case reaches mediation, the damage — emotional and financial — has usually already begun. What we can do is help families and their advisers resolve disputes at an earlier stage, before legal costs and entrenched positions make settlement substantially harder.

For practitioners managing increasingly emotional and expensive probate litigation, that distinction matters.

The Problem Is Rarely Just the Will

Many contentious probate disputes initially present as technical legal disagreements:

• the validity of a will;
• allegations of undue influence;
• proprietary estoppel claims;
• disputes concerning lifetime gifts;
• executor conduct;
• Inheritance Act claims.

But experienced practitioners know that the legal issue is often only one part of the dispute. The underlying conflict frequently concerns perceived unfairness, family history, care arrangements, or a sense that someone “wasn’t listened to”.

This is one reason why even apparently strong cases can become difficult to resolve through correspondence alone. Parties are not simply advancing legal positions; they are defending identities, relationships, and long-held grievances.

The STEP article rightly points to communication failures within families as a key driver of disputes. In practice, many mediations reveal that no meaningful conversation ever took place about the deceased’s intentions. Children may have made assumptions over many years about inheritances, property, or family businesses. When the will contradicts those assumptions, litigation can quickly follow.

By that stage, however, the legal costs clock is already running.

The Escalation Problem

One of the more difficult aspects of contentious probate litigation is how quickly costs can become disproportionate to the value of the dispute itself.

This is particularly true in claims involving:

• modest or mid-sized estates;
• multiple beneficiaries;
• disputed factual histories;
• capacity evidence;
• emotionally invested litigants in person.

Once proceedings are issued, parties often become psychologically committed to “seeing it through”. Advisers can then find themselves managing clients whose emotional investment far exceeds the economic reality of the litigation.

The practical difficulties are familiar:

• disclosure exercises become expansive;
• witness evidence hardens positions;
• settlement discussions become performative;
• costs budgets escalate;
• family relationships deteriorate further.

Even where settlement eventually occurs — as it frequently does — it may happen only after substantial depletion of the estate.

For solicitors balancing client care, proportionality, and commercial realities, this creates a genuine challenge. Clients understandably want vindication. But they also need realistic advice about risk, delay, and the financial consequences of prolonged litigation.

Why Early Mediation Matters

There remains a tendency in some probate disputes to view mediation as something to attempt shortly before trial, once evidence has crystallised.

In some cases that is appropriate. In others, it may be significantly later than ideal.

Early mediation can offer several advantages in contentious probate matters:

1. Preventing Positional Entrenchment

The earlier parties engage constructively, the greater the chance of avoiding rigid narratives becoming fixed. Once pleadings and witness statements are exchanged, parties often begin treating their own case theory as established fact.

A skilled mediation process allows parties to explore concerns and priorities before those positions become irreversible.

2. Preserving Family Relationships Where Possible

Not every family relationship can be repaired and as a mediator I appreciate that and focus on what can be achieved. But many parties later regret the extent to which litigation escalated hostility unnecessarily.

Early mediation at least creates an opportunity for communication in a controlled environment before matters become entirely adversarial. 

3. Controlling Costs

This is perhaps the most obvious point, but also the most important. Every avoided interlocutory battle matters in probate litigation.

Mediation does not remove legal complexity. Nor should it bypass proper legal advice. What it can do is create space for pragmatic settlement discussions before costs become disproportionate to outcome.

4. Giving Clients Agency

Court proceedings often leave parties feeling passive and unheard. Mediation allows clients to participate directly in shaping outcomes.

That can be particularly important in inheritance disputes, where emotional validation is sometimes almost as important as financial resolution.

Mediation Is Not About Avoiding Difficult Conversations

There is occasionally a misconception that mediation is simply a softer alternative to robust litigation strategy. In reality, effective mediation involves confronting the difficult realities.

Clients may need to hear:

• that the evidence on capacity is not as strong as they believe;
• that proportionality matters;
• that a “winner takes all” outcome is unlikely;
• that preserving part of the estate may ultimately be preferable to exhausting it.

Good mediation does not avoid those conversations. It facilitates them in a way that parties are more able to absorb constructively.

The Human Factor Still Matters

One of the reasons contentious probate work remains uniquely demanding is that these disputes rarely feel commercial to the parties involved.

Unlike many business disputes, inheritance litigation often arrives alongside grief, guilt, fractured sibling relationships, and years of unresolved family history. Rationality can coexist with profound emotional distress.

Practitioners referring these disputes typically need someone who understands not only the legal framework, but also the emotional temperature of these cases and the patience required to navigate them carefully. My mediation practice focuses heavily on resolving precisely these kinds of difficult and emotionally charged disputes.

Those of us who spend time in this field also know that outcomes are rarely achieved through pressure alone. Persistence, careful listening, and allowing parties space to move at their own pace often prove more effective than confrontation.

Like being a Saints fan, mediation requires patience, resilience, and a willingness to keep working long after others assume the result is inevitable and unavoidable.

A Shared Responsibility

The STEP article is ultimately a reminder of something wider than dispute resolution. Better estate planning and better family communication would undoubtedly prevent many inheritance disputes from arising at all.

But where disputes do emerge, there is also a shared professional responsibility to contain the damage where possible.

Solicitors and barristers working in this area already carry the difficult task of balancing legal realism with client empathy. Mediation cannot eliminate family conflict or undo years of misunderstanding. What it can do is provide an earlier opportunity to resolve disputes pragmatically, confidentially, and proportionately before costs — financial and emotional — spiral further.

For many families, that may ultimately be the most constructive outcome available.