PROBATE MEDIATION FOR PROBATE DISPUTES

As a collaborative process, mediation, is often a good fit for probate cases. The mediation process is particularly useful when the claims are not only legal disputes but involve ongoing relationships usually among family members. Issues may arise over almost any asset in the estate.  

Probate assets mean funds or items that pass through a will and non-probate assets means funds, insurance policies or other items that pass outside of a will usually by a direct beneficiary designation.  Disputes may also occur between a trustee and beneficiary or guardianships over minors or adults.

Reasons you may choose probate mediation are;

• Limited resources. The value of the estate or disputed asset does not warrant an expensive litigation and trial.
• Issues that cannot be decided by the court. A decision by the court may not solve all the issues of a case.  Having a loved one declared an incapacitated person can cause disputes involving a family member, care facilities, safety and health concerns; family tensions arise over family businesses over succession planning, a competent parent “gifting” money or assets that are viewed as unfair and generally unresolved conflict and family
• Preserving relationships. When family members disagree with a guardian’s actions of a parent or a disagreement arises between a trustee and beneficiary, especially if they are related preserving the relationship to fend off future disputes may be desirable.

In certain circumstances probate mediation may not be advisable such as those involving;

• Allegations of abuse by or to someone who is a necessary party to the mediation.
• If your goal is to “get even” or to punish another party, or you simply want to win at any cost on ‘principle” then you may not be able to participate in the give-and-take process of mediation because it requires a basic level of willingness to negotiate that is lacking in this

Preparing for probate mediation

        Unless the court chooses a mediator, the attorneys will often collaborate to find a mediator with the experience and demeanor that suit your case.  The attorneys may participate in a conference call to organize the mediation, set a location and discuss the terms of the engagement such as how the mediator will be paid for services.

Once a mediator is engaged, you can help assure that the process is a valuable one.  Important preparation for any mediation is knowing two important scenarios (1) Best Alternative to a Negotiated Agreement (BATNA), and (2) Worst Alternative to a Negotiated Agreement (WATNA).  Your attorney is the best resource to help you explore the likely range of possibilities if the matter is decided by the court, as well as what the costs may be in both time and resources if you decide to pursue litigation or trial.

Be prepared to answer the question if the mediator asks what is important to you.  In an estate case, a person can express a feeling of being entitled to a certain piece of property or to a certain sum of money. 

This sense of entitlement may be based on information that is or is not legally relevant in a probate proceeding such as being promised a special ring by your mother but her will says nothing about that piece of jewelry.  You may be concerned by a sense of fairness. It’s not that you want a definite amount but want to be satisfied that you are not being taken advantage of your cheated by others in the family.  

You may be focused on repairing or preserving family ties; or you may view this as your opportunity to get back at someone for perceived past wrongs. When the people involved held different types of relationships with the decedent, (child, step-child, second spouse, non-married partner, caregiver, etc.), already existing jealousy or distrust can color your perception of fairness and the interpretation of the decedent’s intent. 

In addition, reflect on your underlying interests.  Be honest with yourself, if the most important issues are not legal issues; but rather other interests, understanding your own motivating facts will help guide you, your attorney and the mediator to explore options and solutions.  

For example, is it important to remain living in the home that you shared with a now deceased parent although you cannot afford to purchase it from the estate?  Is it a sentimental item you want to remember your mother? Are you fighting for a vehicle, furniture or tools that you may need but cannot afford for yourself?  Identifying your own your motivating and important factors will help to find a settlement you can be satisfied with.

If your case is complex, allow your attorney to help you understand what issues need to be resolved, and whether these issues are the same for both parties.  To the extent that you know the position/interests of the other party, explore your options for resolution that may meet the needs of all parties including whether there are positions you are willing to give up or compromise in order to gain resolution or something else.  Think about options that may not be available in a “win or lose” decision by the court.

If you have difficulty communicating, or feel intimidated by the process, let your attorney know that you prefer he or she speak or be very active on your behalf in the mediation session. In other cases, you may wish to speak on you own behalf, and your attorney’s role will be more as advisor, to help them consider options, or to give legal advice when needed.

Settlement

It is rare that parties leave probate mediation smiling, shaking hands, and feeling good.  It can be an emotional and draining experience.  It is not uncommon, even with a satisfactory settlement to have mixed emotions.  

However, mediation provides a private setting for you to tell your story in your own words, discuss your differences, and share views and opinions with one another in a way that cannot occur in a courtroom trial.  

Even if you do not settle your case on the day of probate mediation, you will have gained insight about each sides goals and expectations that may lead to reaching a settlement through further negotiation.