Mediation of Trust & Estate Disputes

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  • Benefits.
  • Tax-efficient efficient settlement of probate trust & inheritance disputes.
  • Process.
  • Mediation Agreement.
  • Time-Zone Management.
  • Pre-Mediation Zoom/TEAMS Calls.
  • Preparation.
  • Starting the conversation.
  • Offers.
  • Executing a Settlement Agreement.
  • Tomlin Orders.
  • Enforcement of Settlement Agreements.


There is always an unquantifiable element of risk in litigation. This may include in the case of a probate/trust/inheritance dispute, an unpredictable judge (i.e. sitting in a lower court), who is not interested in the merits of legally robust argument, and instead adopts a pragmatic and subjective approach. It is also rare, even during or at the end of a trial, to have evidential certainty and all the information a party wanted available. Parties develop their cases as they fight them in court, and so the ‘goal posts’ can move. As the Court of Appeal recently held in Ali v. Dinc [2022], a judge can decide a case on grounds that have not even been pleaded. Contentious probate and trust cases are particularly high risk because they are notoriously fact sensitive. In these cases, it is not uncommon for litigation costs to exceed the value of a claim/estate.

In Teasdale v Carter [2023] EWHC 490 Fam, the High Court dismissed the claimant’s proprietary estoppel claim against her husband and daughter over the ownership of a farm outbuilding. Moor J stated: ‘I have to say that this is one of the most regrettable pieces of litigation that I have ever come across. It is not just because this family has become so fractured as a result. The total costs of the litigation at the conclusion of the hearing below were approximately £828,000. The costs of this appeal are £220,000. These figures do not include the costs of the financial remedy proceedings. The house at the heart of the dispute, Cow House, is worth £245,000, after a 20% reduction for an agricultural occupation restriction. When the appeal was opened, it was said that, if I allowed the appeal, the matter would have to be re-heard at further vast expense, as an appeal court clearly could not substitute different findings of fact for those found by the judge below. The final reason that the position is so regrettable is that the parties agreed a way forward on 7 October 2020 which would have obviated the need for all this litigation. Unfortunately, the agreement was subsequently repudiated by the Appellant, on the basis that the First Respondent had enlarged her claim in other respects. The case was then litigated for nine days before HHJ Shelton. It has been heard for two days before me, although that time estimate included only half a day of reading time and absolutely no judgment writing time.’

Furthermore, following a trial the winner will not usually recover all of their costs, and the loser may end up in negative equity. If the dispute includes a claim for financial provision, there is also a risk that a judge will make an award under the Inheritance Act which includes an element of a CFA success fee. Therefore, the sooner the parties in dispute enter into mediation, the lower the potential success fee is likely to be.

In my experience and opinion, the cut and thrust world of contentious probate and trust litigation has very little to do with abstract notions of justice, and is actually more about perceptions and calculation. So, unless a party needs a court determination to move forward, e.g. as to whether a trust is valid or void, or the court must be involved, i.e. because the case involves children or other vulnerable beneficiaries, then why not do a deal instead?

In my experience, there is nearly always a deal to be done.

Paradoxically, while a claimant may have gone to court or threatened to issue proceedings because they are being ignored or stonewalled, the voices in the court room are not those of the parties, but of lawyers and judges who have no actual ‘skin in the game.’ Consequently, how participants speak to each other in a mediation, either directly, or through their legal representatives or the mediator, is an opportunity to show respect by allowing the other to be heard. That can move the parties along from deadlock about their respective positions to doing a deal in their mutual interests. The skill of allowing a participant in mediation their voice, i.e., the right to be heard, is linked to both ‘how you talk’ and to ’empathetic listening’, because to switch the dynamic from confrontation to collaboration, you must first show a person that:

(a)     he/she has been heard; and

(b)     you understand his/her position, and the underlying reasons.

The unifying factor in all probate and trust disputes is the composition of the estate/ trust asset pool, and its value. It is not uncommon for litigation costs to exceed the value of an estate. Therefore, the earlier parties in dispute become participants in a process of negotiation, the more likely it is, that each will receive a slice of a larger pie (i.e., of the estate/trust fund) if the dispute settles at or shortly after mediation.

The overwhelming majority of contentious probate/trust disputes never reach trial, because parties agree the structure and terms of a legally robust compromise. Between 92.3 – 94.4% settle, see paragraph 1.3 of my book, the ‘Contentious Probate Handbook.’

Mediation may also be an opportunity to transform an acrimonious probate/trust dispute into a joint-problem solving exercise, by applying estate planning principles to discover and unlock tax-efficiency post-death, resulting in the enlargement of the estate/trust fund pie for settlement.

As I explain in paragraph 1.3 of the ‘Contentious Probate Handbook’:

‘From the outset, and throughout the conduct of the case, it is incumbent upon a practitioner to evaluate the client’s costs/risk calculus and the benefits of proposing/engaging in ADR. To obtain a quick indication you can roughly estimate the cost of your client getting what he or she wants (i.e. if he or she wins), and factor in the litigation risks. Even if your client wins, and nothing is absolutely certain in litigation, where an executor is entitled to an indemnity out of the estate for costs properly incurred, the capital value of the estate will have been diminished by legal costs and experts’ fees incurred in the litigation. Lose, and your client ends up in negative equity. Then compare the costs of ADR with the costs of a trial.’

‘Mediation in this field is the logical extension of progressive thought and offers real and immediate benefits to individuals, organisations and government: it is a folly to ignore.’  Jonathan Dingle FRSA, Hon CEO The Society of Mediators.

See my recent article, ‘Mediating Probate and Trust Disputes – Process Challenges and Tools – Part 1.’ Published online by Oxford University Press in Trusts & Trustees  ( in February 2023. Link to the article [Mediating probate and trust disputes—process challenges and tools: part 1 | Trusts & Trustees | Oxford Academic (].

I am currently writing Part 2 of the article for Trusts & Trustees (OUP) for publication later this year.

The current Abstract reads:

‘Although life can only be understood backwards, it must be lived forwards. Litigation is a backwards looking process, at the end of which a Judge must make a binary choice between competing narratives. Mediation is a forward-looking process in which the participants (‘P’s’) work out their own solution through a process of engagement. Therefore, the first challenge for a Mediator (‘M’) is to understand what each P wants, needs, and prioritizes, and why. This requires empathy and affirmation. The second is to facilitate engagement. As discussed in Part 1, the ‘hook’ is the making of an ‘interesting offer’. On paper, a theoretical settlement zone exists somewhere in the gap between:

(i)      the maximum net capital value of each P’s claim; and

(ii)      each P’s BATNA (‘best alternative to a negotiated agreement’) – which in litigation is proceeding to trial, i.e. the amount below which P will walk away from the table. The challenge in reducing the size of the gap is to make adjustments. In other words, throughout the ‘Mediation Dance’, each P needs to re-evaluate the calculus underlying their BATNA. A Mediation ‘process’ may involve more than one day of meetings, e.g. where an international trust/fiduciary duty dispute involves P’s located in different time zones. Whether the ‘process’ is conducted over the course of one day or several days, a well-constructed Mediation typically involves seven phases:

  • Exchange of further information.
  • Formulation of proposals.
  • Adjustments to narrow the gap.
  • Agreement of terms in principle followed by the drafting and execution of a binding Settlement Agreement.

In Part 1 the author discussed ‘Preparation’, including the making of Pre-Mediation Day Zoom calls and a checklist of issues for the mediator to run through at the start of the Mediation Day to ensure that each P understands and is bound by the ‘ground rules’. In this Part, the author discusses the challenges and tools available to a Mediator during the Mediation Day, to help the P’:

  • overcome psychological barriers to engagement; and
  • develop their own simple or complex solution through engagement with M in private sessions, and with each other in plenary sessions,

in order to agree and sign-off on binding terms of a Settlement Agreement in overall and final settlement of their dispute.

Mediation is the art of knowing how, when and why to ask questions which can bring about a ‘cognitive shift’ in each P’s thinking and behavior, i.e. a paradigm shift about what they perceive to be at stake and the value of settling. This includes each P’s analysis and evaluation of potential:

  • gains;
  • opportunities;
  • risks;
  • costs (including intangibles e.g. health, relationships, reputation); and
  • losses (including the time-value of money).

Metaphorically, ‘questions’ are the ‘steering-wheel,’ whereby M can navigate a ‘difficult conversation’ with each in order to bring closure by helping each P to sort out their dispute for and by themselves. In writing the article the author has attempted to set out a Mediator’s Toolkit, i.e. a ‘conceptual framework’ for the structuring of questions by M whilst conducting private sessions with each P, using tools to respond to the challenges that typically arise in the Mediation of a Probate/Trust Dispute, including an international trust and fiduciary dispute.’

I am also currently writing the 2nd edition of the ‘Contentious Probate Handbook’ for publication by the Law Society in 2024, which contains an extended chapter about ADR in probate and trust disputes, including JENE.

Tax-efficient efficient settlement of probate trust & inheritance disputes

Mediation is an opportunity to transform an acrimonious probate dispute into a joint problem-solving exercise, by applying estate and business succession planning principles, to discover and unlock tax efficiency post-death, resulting in the consequential enlargement of the estate or trust fund pie for settlement.

In a probate or trust dispute, the convergence of interests around the win/win principle of expanding the estate or trust fund pie by agreeing terms of settlement that result in enhanced tax-efficiency for the benefit of the estate/trust fund, opens the door to retrospective estate planning where:

  • The drafting of a will or trust is deficient from an inheritance tax planning perspective, e.g. if property is left into a discretionary trust, because the residential nil-rate band (RNRB) is not available even if all beneficiaries are lineal descendants, as the beneficiaries are not treated as the beneficial owners of the property.
  • The testator’s adult son (G2) or grandson (G3) is in an unstable marriage, or is improvident, by for example skipping a generation for capital preservation and asset protection to shield capital assets in the event of divorce or other catastrophic instability in G2 or G3.

Mediation, is an opportunity for both the executors or trustees and beneficiaries – the primary ‘participants’ in the mediation – to:

  • look forward rather than backwards, by focusing on how to put the family house in order, that is the structure and fiduciary administration/management of the estate or trust fund; and
  • expand the estate or trust fund pie by maximising tax efficiency, say through the re-direction of testamentary gifts and by conferring overriding powers on the trustees, which when exercised, enable them to re-structure the legal and beneficial ownership, management, governance, control and use of assets.

‘Peace at mediation is achieved not through overwhelming the other side but by finding enough common ground on which a settlement can be constructed that meets the reasonable expectations and needs of all sides’ (Advising and Representing Clients at Mediation, second edition (2019), by Stephen Walker and David Smith, Wildy, Simmonds & Hill Publishing).

While inheritance tax planning which benefits the entire estate or trust fund appears to create common ground, in the real world, whether a participant in a mediation perceives it to be in their interest to explore this terrain, i.e. to explore hidden value by entering into a facilitated dialogue about the scope for tax-efficient post-death planning, is a commercial decision that each participant must make for themselves following a discussion with their own professional advisers and representatives at the mediation.

However, when participants enter into a dialogue about the testamentary scheme of gifting and re-structuring post-death, a motivating factor is that this is also a collateral opportunity to undertake and implement: asset-protection planning – to preserve and protect capital wealth for future generations; and family business succession planning. Together, these hidden agendas when they interconnect, may reveal the existence of fertile common ground for discussion, which results in a mutually satisfactory tax-efficient settlement of the dispute.

See my article, Back to the future’ – Part 1 – Mediation and the tax-efficient settlement of probate disputes. Taxation (Tolley) 01.03.2022: Mediation and tax-efficient settlement of probate disputes | Taxation

[This is only available to download by subscribers to Taxation. To request a copy please send an email to].


In essence, mediation is a forward-looking conversation. The role of a mediator is to manage the process and ensure that it is conducted in accordance with the terms of the Mediation Agreement.

The mediator must also:

  • Create an environment in which adversarial parties in a confrontational dispute can come out of their ‘positional’ trenches and walk towards the centre of the commercial problem that divides them.
  • Empower adversarial parties to a dispute to become participants in a creative, bespoke and collaborative problem-solving exercise, and eventually, to walk side by side in jointly exploring and developing a commercial solution of their own design which takes into account: the facts presented in their respective position statements; the documentary evidence in an agreed bundle of documents; legal merits; litigation risks; the time value of money; and the benefits (including tax benefits), of ‘doing a deal’ now, instead of incurring further legal costs by resuming trench warfare and proceeding to trial.

This requires counter-intuitive thinking and behaviour and can result in a ‘paradigm shift’ which results in a creative solution that a court cannot impose. It therefore also requires a ‘commercial’ rather than a ‘forensic’ legal and procedural mind-set, and some imagination.

The challenge for a mediator is to persuade each participant to identify (in strict confidence) what is actually at stake, i.e. to drill down to what each participant’s individual objectives, needs and priorities are, and to understand why.

While it is not the function of a mediator to speak truth to power, a mediator can facilitate the re-framing of a dispute as an opportunity, by enabling each participant to think about what is important to them, so that the P‘s can jointly agree upon a ‘methodology’, i.e. a ‘road map’ for convergence and consensus. This requires a ‘paradigm shift’, i.e. acceptance by each participant that there is a better way of resolving their dispute than proceeding to trial.

Paradoxically, while a claimant may have gone to court or threatened to issue proceedings because they are being ignored or stonewalled, the voices in the court room are not those of the parties, but of lawyers and judges who have no actual ‘skin in the game.’ Consequently, how participants speak to each other in a mediation, either directly, or through their legal representatives or the mediator, is an opportunity to show respect by allowing the other to be heard. That can move the parties along from deadlock about their respective positions to doing a deal in their mutual interests. The skill of allowing a participant in mediation their voice, i.e., the right to be heard, is linked to both ‘how you talk’ and to ’empathetic listening’, because to switch the dynamic from confrontation to collaboration, you must first show a person that:

(a)     he/she has been heard; and

(b)     you understand his/her position, and their underlying reasons.

Mediation Agreement 

As a matter of contract, the Mediation Agreement ensures that:

  • The process is confidential.
  • When the mediator meets a participant (P1) in a private session, he will not repeat anything said to him to another participant (P2), unless M has been expressly authorised to do so by P1.
  • The ‘without-prejudice’ rule applies to and protects all communications between everyone taking part or present at the mediation. Therefore, what is said in the mediation stays in the mediation and cannot be used or referred to in any legal proceedings or open communication after the mediation has ended.
  • Each participant undertakes to act in good faith.
  • Each participant confirms that they have full authority to negotiate and agree terms of settlement.
  • Each participant confirms that they are available for the planned duration of the mediation.
  • The process is voluntary, and a participant may end the process at any time if it is not working for them.
  • No agreement as to the terms of any settlement reached during the mediation will be legally binding unless and until terms have been reduced to writing and signed, and therefore, that nothing is agreed, until everything is agreed.
  • If an agreement is reached between the participants, terms of agreement will be prepared in writing and signed by them, or by their legal representatives on their behalf.
  • It is understood that the mediator will not provide any legal, tax, estate planning, business succession planning or commercial advice, and that before making any decision, participants are free to take advice from their own professional advisers at any time.
  • It is understood that the mediator will not be involved in drafting any settlement offer, memorandum of understanding (MOU), settlement agreement and draft Tomlin order.

Consequently, in practice, a mediation cannot proceed unless and until a Mediation Agreement has been signed.

Time Zone Management

A mediator tool that opens up the door to the online mediation of cross-border trust disputes is ‘time zone management’. For example, Johannesburg is only one/two hour(s) ahead of London. Therefore, online mediations with participants located almost anywhere on the continent of Africa can be managed with relative ease and comfort. The same applies to mediations in the Middle East. For mediations involving participants located e.g. in Singapore [‘S’] (which is 7 hours ahead of GMT) and BVI [‘B’] (which is 5 hours behind GMT), if M in London starts a pre-mediation call/the first private session with S at 10am GMT (= 5PM in S) and then does the same with B at 2pm (= 9am in B), convenes a 2nd private session with S at 3pm GMT(= 10pm in S) and then starts a third private session with B at 4pm GMT (=11am in B), then M can conduct at least 6 private sessions within a 48 hour period.

Pre-Mediation Zoom/TEAMS Calls

A technique/tool which a mediator can use to catalyse and energise the mediation process ahead of the Mediation Day, i.e. to start off an online or face-to face mediation on the right foot, is to conduct a pre-mediation Zoom call with each participant to:

  • Test the link – if the mediation is to be conducted by Zoom.
  • Confirm that each participant understands the key terms of the mediation agreement.
  • Confirm who is attending and has authority to agree terms of settlement on the mediation day.
  • Clarify the value and composition of the claim.
  • Identify whether any settlement offers have been exchanged.

Psychologically, this can help each participant to enter the mediation ‘negotiation’/‘deal-making’ zone ahead of the mediation, by getting them to think about what they actually want, need, and why, and conversely, about the litigation risks and costs involved in not ‘doing a deal’, and ‘going to war’ by proceeding to trial – their BATNA.

A variant of this technique/tool, is for the mediator to make two pre-mediation zoom calls instead of one:
1st – with each P‘s  lawyer(s) (without their client present), to understand what brought the P‘s to the table and vice versa, what has kept them away until now, e.g. lack of understanding about mediation/ psychological aversion/refusal by P to mediate; and

2nd – with each P in the presence of their lawyer(s) (which would usually take place anyway to test the link in an online mediation), to enable:
(a)  each P and their lawyer(s) to prepare to do a deal; and
(b)  afterwards for a conversation to take place between each P & their lawyer(s) about how best to prepare ‘to do a deal’, i.e. by developing a ‘settlement range’.


Mediation is about doing a deal.’  Therefore,  in order to prepare, each participant must calculate and decide the ‘price of doing a deal’.

The decision will be influenced by each P’s analysis of litigation risks and irrecoverable costs.

Mediation works best where instead of rehearsing their case, participants invest in the process by preparing ‘to do a deal’ instead of going to war by developing a ‘settlement strategy.’

Therefore, sufficiently in advance of the mediation, each P needs to think about:

  •     The potential settlement zone.
  •     The known or estimated gap between what each participant wants.
  •     Their ‘BATNA’ (best alternative to a negotiated agreement, i.e. proceeding to trial).
  •     How to close the gap and come away with a win/win solution, compared to the costs and risks of litigation and proceeding to trial.

In my experience as a mediation advocate, it is always better to be prepared to advance to a known position than to retreat into the unknown. The acme of preparation is the development of a ‘settlement range’ based upon:

(a)               A realistic legal risk analysis.

(b)               An accurate commercial analysis.

Then, a concrete opening offer can be made. In the experience/opinion of the author, this requires a white-board/flip-chart for sketching out the parties’ respective expectations in order to plot and discover your client’s potential ‘settlement range’ between:

(c)     the maximum net capital value of his/her claim; and

(d)     his/her BATNA (‘best alternative to a negotiated agreement’ – which in litigation is proceeding to trial, i.e. the amount below which he/she will walk away from the table).

Starting the conversation

On the Mediation Day, the mediator’s role is to listen and help the participants to have a conversation – whatever the outcome. While to an extent, the mediation of a commercial dispute may engage both a facilitative and an evaluative style, the mediator does not possess all the facts, and unlike a judge has not heard all of the evidence, therefore, it is not M’s function to express an opinion about law and merits. For the same reasons M may ask P‘tell me more’, because in order to help the P’s jointly develop their own methodology for resolving the dispute, M needs to grasp the issues in dispute, and drill down into each P’s position and underlying reasons. Until M has engaged in this conversation with each P he cannot ask laser-focussed reality testing questions, i.e. by playing Devil’s Advocate, about the legal and commercial issues in dispute. Therefore, M should be in no hurry, and must not place himself under false pressure. Likewise in order to steer the P’s toward a methodology that yields a solution (i.e. a joint framework of principles that can be applied to solve the problem), M must allow each P the space and time in which to develop their own thinking and ideas.

The mediator is not the author of the participants’ journey/adventure, because they will write the ending. Since the P’s do not know where the mediation is going to end up, M does not know where it can lead. Therefore, at the start of the  conversation, the demeanour of M should be one of polite curiosity. M can and should summarise without expressing a judgment and may ask thought provoking questions, but he must be seen to be neutral – which is why body language is important. Mediation is the art of the possible, and like Indiana Jones in ‘Raiders of the Lost Ark’, a mediator should enter the cave with all the wariness of an explorer, because he/she does not know what dangers lie ahead. While M is not likely to encounter a hail of poisoned darts, if he/she agitates P, M could make the dispute worse – which in mediation is a cardinal sin! That is why M should not be in any hurry and needs to tread step by step with great care.


The golden rule in all mediations is that because mediation is essentially a form of facilitated negotiation, success (however that is measured by each participant), depends upon movement and momentum, which requires compromise on all sides, i.e. flexibility, otherwise if the participants stay in their ‘positional’ trenches the mediation will fail. This requires courage, trust, and realism. Therefore, at some point, one of the participants will need to start up the mediation engine by making an offer. The business of ‘doing a deal’ can then get underway – the game is afoot!

In practice, there are only three types of opening offer a participant at a mediation can make:

  • An ‘unacceptable’ offer – that is an offer that is so unreasonably high or low that it will be rejected by the other participant and does not cause them in any way to alter their approach to settlement. At worst it may result in the other participant walking out and ending the process prematurely.
  • An ‘acceptable’ offer – that is an offer which is so high or low that the other participant will bite your hand off – which means an opportunity to secure a better deal has been lost.
  • An ‘interesting’ offer – that is an offer which makes the other participant really think. It is unlikely to be accepted but the aim is to make the other side engage with the proposal as a starting point for opening a discussion which can then be worked on to produce an interesting counter-offer, both sides are then fully engaged, and the mediation can progress towards a final settlement.

Before a participant can make an ‘interesting offer’, there has to be reciprocal clarity about: the legal elements of the claim; estate or trust fund assets; and corresponding commercial values – i.e. the basic ‘mediation maths’. If the will to ‘do a deal’ is shared by the participants, the mediator can help them to narrow and eventually close the gap. The making of an offer is a matter of timing.

Executing a Settlement Agreement
When Mediation results in settlement, it is critical to execute a legally binding settlement agreement that is comprehensive, i.e. which clearly and coherently states all of the material terms of the deal that has been agreed.
As I explain in paragraph 22.13 of my book the ‘Contentious Probate Handbook’ (published by the Law Society in July 2020),
‘[It] is not the normal practice of the Judges or Masters of the Chancery Division to inspect schedules or agreements annexed to Tomlin Orders. The judge who makes the order undertakes no responsibility for the scheduled terms and cannot be taken to have approved them. In other words once a contract has been agreed the parties will be bound by it’s terms. Therefore, until all material terms of settlement have been agreed, and expressed in terms that are capable of legal implementation, it would not be prudent to sign a binding agreement, whether in the form of heads of agreement, or a detailed schedule of terms.’
See also paragraph 16.45 of the Chancery Guide 2022 below.
In a one-day Mediation, the drafting of a comprehensive, coherent and legally binding settlement agreement, not infrequently consumes around 30% of the Mediation Day, i.e. between 5.30pm-10pm. That is when the participants are most vulnerable to the making of mistakes which subsequently can result in ‘buyer’s remorse’.
It is therefore helpful, if one or more of the parties, can prepare for the Mediation Day by drafting a template settlement agreement, to use and adapt on their laptop, when jointly drafting a comprehensive and legally binding settlement agreement, along with the other participants’ legal representatives, once terms of setlement have been agreed in principle.

Tomlin Orders

Tomlin orders are used where:

(a)     complex terms are agreed;

(b)     the terms of a compromise go beyond the boundaries of the claim; or

(c)     it is sought to avoid publicity.

Under CPR, rules 1.1, 1.4 and 3.1(7), the court may vary the terms in the body of a Tomlin order. However, because the terms in the Tomlin Schedule are a contract, the court has no power to vary them under the CPR. The only basis for varying or revoking provisions in the schedule are those which apply in relation to contracts (e.g. fraud, undue influence, misrepresentation, mistake).

CPR, r. 40.6 states:

‘(1)  This rule applies where all the parties agree the terms in which a judgment should be given or an order should be made.

(2)   A court officer may enter and seal an agreed judgment or order if—

(a) the judgment or order is listed in paragraph (3);

(b) none of the parties is a litigant in person; and

(c) the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made.

(3) The judgments and orders referred to in paragraph (2) are—

(a) a judgment or order for—

(i) the payment of an amount of money (including a judgment or order for damages or the value of goods to be decided by the court); or

(ii) the delivery up of goods with or without the option of paying the value of the goods or the agreed value.

(b) an order for—

(i) the dismissal of any proceedings, wholly or in part;

(ii) the stay of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the order or elsewhere;

(iii) the stay of enforcement of a judgment, either unconditionally or on condition that the money due under the judgment is paid by instalments specified in the order;

(iv) the setting aside under Part 13 of a default judgment which has not been satisfied;

(v) the payment out of money which has been paid into court;

(vi) the discharge from liability of any party;

(vii) the payment, assessment or waiver of costs, or such other provision for costs as may be agreed.

(4) Rule 40.3 (drawing up and filing of judgments and orders) applies to judgments and orders entered and sealed(GL) by a court officer under paragraph (2) as it applies to other judgments and orders.

(5) Where paragraph (2) does not apply, any party may apply for a judgment or order in the terms agreed.

(6) The court may deal with an application under paragraph (5) without a hearing.

(7) Where this rule applies—

(a) the order which is agreed by the parties must be drawn up in the terms agreed;

(b) it must be expressed as being “By Consent”;

(c) it must be signed by the legal representative acting for each of the parties to whom the order relates or, where paragraph (5) applies, by the party if he is a litigant in person.’

‘If an order is agreed between the parties, but includes a provision going beyond the types of orders referred to in [CPR, r. 40.6], or if one of the parties is a litigant in person, it will have to be approved by a judge (often a District Judge or Master). … If all the parties write to the court expressing their consent, the court will treat that as sufficient signing of the consent order [PD 23A, para. 10.2]. The court will not necessarily make the order in accordance with the agreement between the parties, as the court retains ultimate control, particularly over case management matters. However, it will always take the terms agreed between the parties into account in whatever order it decides to make (see, for example, PD 28, para. 3.8).
In cases where the court’s approval must be sought, either party may make the application for approval, and the application may be dealt with without a hearing (CPR, r. 40.6(5) and (6)). A court cannot make a consent order without the valid consent of the parties (Sharland v Sharland [2015] UKSC 60, [2016] AC 871 at [29]). Nor can it make an order it does not have the power to make, even if the terms are agreed by the parties. For example, the court cannot order the parties ‘to agree’ (that is for the parties themselves), nor can the court order the claimant to discontinue. Instead, in these situations, an order may set out the terms the parties have agreed, or it might record an undertaking by the claimant to discontinue.’ (Blackstone’s Civil Practice 2023 paragraph 63.43).

Generally, in the Chancery Division the parties are responsible for providing the court with an order in a form which may be approved and sealed without amendment (Chancery Guide, paragraph 22.1).

The Business and Property Courts of England & Wales Chancery Guide 2022 states:

16.43          All Tomlin Orders must be headed ‘Tomlin Order’ (not simply ‘consent order’). A correct form of Tomlin Order (i.e. where proceedings are stayed on agreed terms scheduled to the order) will include the following provisions after any other necessary recitals:

‘AND UPON the parties having agreed to the terms set out in [the attached schedule] [a [confidential] agreement] dated , [copies of which are held by the parties’ solicitors/the solicitors for the (party)] (‘the Agreement’) and to the terms of this Order BY CONSENT IT IS ORDERED that

  1. All further proceedings in this claim [and counterclaim/Part 20 claim] be stayed upon the terms set out in the Agreement except for the purposes of enforcing those terms. Each party shall have permission to apply to the court to enforce those terms without the need to bring a new claim.
  2. There be no order as to costs [or such other costs order as the parties have agreed]
  3. This order shall be served by the [party] [Service note etc]’

16.44         If the parties intend the settlement terms to remain confidential, they should not be filed with the court and the order must clearly identify the agreement (including its date) and where it is held.

16.45          It is not the normal practice when Tomlin Orders are approved for the court to inspect the settlement terms, but it may do so, particularly in claims pursuant to CPR 57. If sight of the settlement terms is requested, they should be sent separately, by email as directed. By approving a Tomlin order the court undertakes no responsibility for the settlement terms and cannot be taken to have approved them.

Enforcement of Settlement Agreements

The Singapore Convention will come into force in the UK six months after the UK has deposited its instrument of ratification with the UN Headquarters in New York. The UK will also champion the Convention internationally to encourage further ratifications. Earlier Consultation (02.03.2023) stated:
‘Mediation is an important means of resolving cross‑border disputes, by enabling the disputing parties to reach a suitable and mutually acceptable resolution themselves, without having to go to court, saving valuable time and money. It is a process which the Government considers ought to be integral to the Justice system, and it is estimated that mediation can save businesses around £4.6 billion per year in management time, relationships, productivity, and legal fees. … The Singapore Convention on Mediation aims to provide a harmonised framework to enable parties seeking to enforce a cross-border commercial settlement agreement to apply directly to a Competent Authority (usually a Court) for the enforcement of that agreement. … The Convention may also present opportunities to establish new relationships in the Indo-Pacific, Middle East and Africa, as well as strengthening existing relationships with parties to the Convention, many of whom are members of the Hague Conference on Private International Law.’

The Consultation Response stated:

‘The Government has concluded that it is the right time for the UK to become a Party to the Singapore Convention on Mediation, as a clear signal to our international partners that the UK is committed to maintaining and strengthening its position as a centre for dispute resolution and to promote the UK’s flourishing legal and mediation sectors. Mediation is a dispute resolution process which is integral to the UK justice system, and it is estimated that commercial mediation can save businesses around £5.9 billion per year in management time, relationships, productivity, and legal fees with the value of UK mediated cases each year being estimated at approximately £20bn as of February 2023. … CEDR stated that online mediation is here to stay and that ‘the nature of the field has permanently changed’ … the Government has also set out its vision to integrate mediation as an essential step within the court process for civil claims. Commercial mediation can support businesses who may be looking for more cost-effective methods of resolving their disputes, outside of the traditional routes of litigation and arbitration, with aspirations of preserving their important and potentially long-standing business relationships by reaching an amicable and mutually agreed resolution. The uniform framework for the effective recognition and enforcement of international mediated settlement agreements, which the Convention provides, will increase confidence to trade across borders and between different legal jurisdictions, by providing a clear and expedited process for resolving commercial disputes through mediation.’

See also:

Home | Singapore Convention on Mediation

The Singapore Convention on Mediation – GOV.UK (

My articles about Mediation on the ‘Publications’ page.