News » Scarle v Scarle (and Paul Pogba and Marcus Rashford) and the power of proximity in a Mediation.

Scarle v Scarle (and Paul Pogba and Marcus Rashford) and the power of proximity in a Mediation.

Posted by Mark Rothman August 27, 2019

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There were two news items that caught my eye last week and shocked many.

From a legal perspective (and it made its way into the mainstream news) was the reported Judgment of Scarle v Scarle. The two stepsisters who went to court to find out which one of them would inherit their parent’s £300,000 estate. The Judgment relied upon the Judge’s determination of applying historic laws to the question of which of their parents died first. The case raised some fascinating points legally, and in the general social interest. The parents were found dead in their home, where they had died at some point in the previous 7 days. The times of their respective deaths were critical in who got what amongst the two stepchildren. If Mrs Scarle died first, her estate would pass to Mr Scarle and then upon his death to his daughter (Ann Winter). If Mr Scarle died first his Estate would pass to Mrs Scarle and subsequent to her daughter (Deborah Cutler).

What really caught my eye, on a personal level, was noting that the Legal Representative (Law Hurst and Taylor) of the successful party (Deborah Cutler) had actually contacted me late last year regarding my availability for a mediation. One of the (many) headlines from this case was that the losing party had refused to accept Ms Cutler’s offer to split the proceeds 50/50, and then 40/60. Winter’s refusal to attempt negotiations had serious repercussions. Not only did she have to pay her own legal costs, she also had to pay the legal bill of Ms Cutler, presumably on an indemnity basis. The estimates seem to suggest costs will be about £180,000.

Now, of course their enquiry as to my availability for mediation may have been on any number of cases they were dealing with at the time. However, I do wonder whether the outcome for all would have been very different had Winter agreed to mediation (and whether I would have been able to get them to reach an agreement at mediation). Her refusal to accept any kind of compromise may suggest to some that mediation would have been a complete waste of time. However, it is proven time and time again that even the most intransient of parties show far more willingness to resolve matters in a mediation than through correspondence between lawyers. It is amazing how creating proximity between parties, as you get in the traditional mediation, can either thaw animosity or at least bring a reality to the parties and encourage them to explore a resolution.

This brings me on to the abhorrent online abuse suffered by Paul Pogba and Marcus Rashford (amongst others) following their penalty misses. Whilst Twitter continues to struggle between allowing free-speech and censoring hateful comments, the fact that so many people feel able to make such appalling comments shows the ‘safety’ one must feel isolated behind their keyboard. Using a mediation analogy, and how the power of proximity can cast aside ill-feeling, it seems to me incredibly unlikely that a majority of the racist tweeters would act in such a way if they were face to face with Pogba and Rashford. Of course, I am not suggesting that there should be any mediation on such matters, I merely refer to this matter as an example of how angry and entrenched people can be (or appear to be) when corresponding at a distance (letters, email, social media) and that whilst such entrenched behaviour may suggest to some that mediation would be futile, actually, it is rarely the case where parties are not more amenable in a mediation setting.

If you are a lawyer with a tricky will dispute case, feel free to contact me to discuss whether mediation could bring a resolution to matters – or 01702 443488