A new chapter for probate mediation. As of April 6, 2026, the 193rd Practice Direction Update and the Civil Procedure (Amendment) Rules 2026 have come into full force. These changes formally embed the court’s power to “order or encourage” ADR at any stage of a probate claim. Following the momentum of the Churchill v Merthyr Tydfil precedent, the High Court is now actively penalizing “mediation dodgers” with indemnity costs, making it nearly impossible for a successful party to recover their full legal spend if they have unreasonably refused to negotiate.
1. The April 2026 CPR Amendments
The most significant change in 2026 is the amendment to the “Overriding Objective” of civil justice.
- The New Power: Judges now have the explicit mandate to stay proceedings at any time to facilitate mediation. It is no longer a “suggestion”, it is a procedural waypoint.
- The Sanction: Under the updated CPR 44.2, the court will specifically look at a party’s conduct regarding mediation when awarding costs. So, if you win your case but refused a reasonable offer to mediate, you could still be ordered to pay 80-100% of your own legal fees.
2. Case Study: Grierson v Grierson [2024-2026]
This high-profile inheritance dispute reached its final “costs phase” recently, providing a stark warning for 2026 litigants.
- The Conflict: A battle between brothers over their mother’s 2020 and 2022 Wills.
- The Conduct: One brother (“Duncan”) was the successful party but had cancelled a planned mediation in late 2023. However, the other brother (“Robert”) pursued a weak case based on a fraudulent 2022 Will and made unsubstantiated claims of solicitor misconduct.
- The Verdict: While the court was skeptical of the mediation cancellation, it ultimately focused on Robert’s “out of the norm” conduct. Robert was ordered to pay Indemnity Costs, a total bill exceeding £160,000 plus VAT.
- The Lesson for 2026: Even if you think your case is “water-tight,” refusing mediation is a high-risk gamble. The court in Grierson noted that while refusal isn’t automatically unreasonable, the financial risks of trial (which exceeded the inheritance in some aspects) make mediation the only “logical” choice.
3. Why 2026 is the “Year of the Mediator”
Why the sudden push for compulsion? The data from late 2025 and early 2026 is clear:
- The 56% Surge: Caveat applications have hit record highs, clogging the High Court.
- Complexity: Blended families and “Digital Assets” (crypto and NFTs) have made probate trials too expensive and technical for standard court time.
- Confidentiality: In 2026, “family squabbles” are often picked up by online news aggregators. Mediation offers a private forum to settle disputes without the details of the family’s wealth, or their drama, becoming public record.
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FAQs
Q1: Can the court force me to settle in mediation?
No. The court can force you to attend and engage in good faith, but it cannot force you to sign an agreement you don’t like. However, if you “attend” but sit in silence or behave obstructively, the mediator’s report may still lead to cost penalties.
Q2: What are “Indemnity Costs” in 2026?
Indemnity costs are the “Elite” penalty. Usually, the loser pays “standard” costs (about 60-70% of the winner’s bill). Under an indemnity order, the loser must pay almost 90-100% of the winner’s legal costs, and the “burden of proof” shifts to the loser to prove any specific cost was unreasonable.
Q3: Is mediation suitable for cases of fraud or forgery?
Historically, no. But in 2026, the High Court is increasingly pushing even fraud cases to mediation. The reasoning is that a “binary” issue (is the Will a forgery or not?) is still a risk that both parties should weigh up before spending £100,000 on expert witnesses and trial.
Let’s Do This Together
Contesting a will could become an overwhelming experience if not accompanied by expert guidance and support. Therefore, our mission is to provide you with all the needed information, support, and authority to get through this journey, with only one goal in mind: Fairness.
To our team, this process is not about winning; it’s about claiming what was yours from the beginning.
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Check our complete guide on how to contest a will in 2026 and arm yourself with the needed knowledge!
Meet Our Founder
With over 30 years of experience across civil litigation and dispute resolution, DS Bal brings a deep, broad understanding of the legal process to every case. His background spans complex disputes involving individuals, families, and estates. LinkedIn
