MURAL - Maynooth University Research Archive Library



    Mediation as a remedy in trust and probate disputes: A review of the comparative approach for international lawyers


    Akhtar, Zia (2019) Mediation as a remedy in trust and probate disputes: A review of the comparative approach for international lawyers. Journal of Mediation & Applied Conflict Analysis, 6 (1). pp. 728-742. ISSN 2009-7170

    [img]
    Preview
    Download (131kB) | Preview
    Official URL: http://jmaca.maynoothuniversity.ie


    Share your research

    Twitter Facebook LinkedIn GooglePlus Email more...



    Add this article to your Mendeley library


    Abstract

    Trust and estate law focuses backwards to determine the grantor’s intent and which parties are right or wrong under legal precedent. In the law of trusts, mediation is often the route chosen by the parties because it offers the most effective method of resolving disputes which arise when one party has deemed their property to be severed and the trustees are seeking mediation to resolve how assets should be divided. Alternative Dispute Resolution (ADR) generally refers to arbitration and/or mediation procedures. It offers the disputants an opportunity to circumvent some (or all) of the most complex, ineffective and costly elements of traditional civil litigation. While adversarial litigation is an expensive and very crude zero-sum game for the resolution of disputes, in areas of family relationships, private property and deceased's estate, ADR does not constitute extra-judicial proceedings. An arbitration agreement does not afford a defence to a court action, but entitles a party to apply for a stay of proceedings, under section 9 of the UK Arbitration Act 1996. This paper draws on UK and US examples and argues that facilitative mediation in trust disputes is especially suitable for ADR in contentious trust cases. It also considers whether the UK and Ireland could usefully adopt some of the US’s more developed and structured practices on ADR and mediation.

    Item Type: Article
    Keywords: ADR; Mediation; Estate planning; Trustee Act 2000; Saunders v Vautier; Uniform Mediation Act;
    Academic Unit: Faculty of Social Sciences > Research Institutes > Edward M Kennedy Institute
    Item ID: 10944
    Depositing User: Kennedy Institute
    Date Deposited: 18 Jul 2019 11:30
    Journal or Publication Title: Journal of Mediation & Applied Conflict Analysis
    Publisher: Maynooth Academic Publishing
    Refereed: Yes
    URI:

      Repository Staff Only(login required)

      View Item Item control page

      Downloads

      Downloads per month over past year