DC Mediation & Dispute Resolution Institute
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Probate & Estate Disputes · June 2026
What Happens If You Refuse Mediation in a Probate Dispute? New 2026 Rules Explained.
Skipping mediation is no longer just a missed opportunity. Under new court rules, it can expose you to devastating cost penalties — even if you win.
Key takeaway: As of April 6, 2026, courts in England and Wales have full authority to order parties in probate disputes to mediate — and to penalize those who refuse without good reason. Cost sanctions range from a 25% cut in recoverable costs all the way to full indemnity costs (roughly 80–100% of the other side's legal fees).
What Changed — and When
The shift didn't happen overnight. It built through a series of rule changes and court decisions that, together, have fundamentally transformed contentious probate litigation.
The Stakes: What Sanctions Actually Look Like
Courts apply sanctions on a sliding scale based on how unreasonable the refusal was — and whether the refusing party won or lost. Here's what recent cases show:
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Minor inflexibility 10–25% Reduction in recoverable costs. Applies even to winning parties. |
Serious refusal 50–75% Partial indemnity costs. Sustained obstruction or silence to repeated offers. |
Extreme conduct ≈100% Full indemnity costs. "Out of the norm" conduct — like ignoring dozens of proposals. |
⚠️ Even winners are not safe. In Conway v Conway, the defendants prevailed — and still lost 25% of their recoverable costs for dismissing mediation without serious consideration.
"The importance of mediation can never be over-emphasized."
— Judge Mithani KC, Conway v Conway [2024]
Why Probate Disputes Are Especially Suited to Mediation
Inheritance disputes are not just about money. They involve grief, family dynamics, perceived unfairness, and deeply personal histories. A judge can decide who inherits the house — but a mediator can help family members actually hear each other and reach terms they've chosen themselves.
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6 Things Practitioners and Clients Should Do Right Now
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3 Cases Every Estate Litigant Should Know
Churchill v Merthyr Tydfil [2023] EWCA Civ 1416
The landmark ruling that confirmed courts may lawfully order parties to engage in ADR and stay proceedings to facilitate it. This case overturned the prior assumption that mandatory mediation was off-limits and opened the door to everything that followed.
Conway v Conway [2024] EW Misc 19 (CC)
Defendants won on the merits but were denied 25% of their recoverable costs for rejecting mediation as "absurd." The judge held that winning on the law does not insulate a party from ADR cost consequences.
Fernandez v Fernandez [2025] EWHC 2530 (Ch)
The outer limit. A losing appellant was ordered to pay full indemnity costs after ignoring 26 proposed mediation dates, delaying proceedings, and introducing new claims mid-litigation. The judge described the refusal as "patently obvious."
The Bottom Line
Mediation in probate disputes is no longer optional in any meaningful sense. Courts are using their expanded powers. Judges are imposing serious cost sanctions. And the rules are only going to tighten as the Civil Justice Council's proposals for mandatory pre-action ADR move closer to implementation.
The practitioners who serve their clients best right now are those who treat mediation as the first serious option — not the last resort.
Facing a Contested Estate Matter?
DC Mediation and Dispute Resolution Institute works with families, estate attorneys, and executors to resolve inheritance disputes through skilled, confidential mediation — before they reach the courtroom.
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