Litigation over a trust or will is sometimes unavoidable. But where disagreements exist, if the parties can focus on settling the dispute, they may be able to avoid a long, drawn-out and costly litigation. Mediation is an alternative to litigation that has several advantages, including:
- Cost-effective alternative to a lengthy and expensive courtroom battle
- Provides a confidential forum for discussions that cannot be used in the litigation
- Avoids public disclosure of personal issues, private matters, and sensitive topics
- Facilitates open conversation to address the dispute or underlying issues
- Gives the participants the opportunity to heal broken relationships
What is mediation?
In mediation, a neutral person (a mediator) tries to help the parties resolve their dispute. The parties select the mediator, often a retired judge or an experienced trust and estate attorney. The mediator’s role is to facilitate open communication about the dispute and options for resolving the dispute in an effort to bring about a settlement that is agreed to by all involved. A mediator does not decide who “wins” and does not make any decisions. Nothing can be imposed on anyone unless it is agreed upon. The mediator’s role is simply to try and help the parties resolve their dispute by candidly discussing the issues and settlement options.
What happens in mediation?
Once selected, the mediator will communicate with counsel regarding his/her procedures. Most mediators encourage the parties to sign a mediation agreement. Depending on the complexity of the case, some mediators will request a written statement providing the mediator with information about the dispute, the party’s perspectives, and various settlement ideas.
The mediator will schedule a confidential settlement meeting or several meetings, which are typically held in the mediator’s office. In these confidential settlement meetings, everything is “off the record” and cannot be used in litigation.
Typically, the mediator starts by meeting with all the parties and their counsel together. This provides a forum for the parties to express their thoughts to each other. This sort of open communication can be particularly helpful in resolving trust and estate disputes because such disputes often center on communication issues, feelings of mis-trust, and/or feelings of being treated unfairly.
After the parties have had their open discussion, the mediator will then split the parties into separate rooms. The mediator will meet privately with each party for further discussion of that party’s perspective and thoughts on settlement. These private discussions with the mediator are confidential as well. The mediator will go back and forth between the separate rooms, trying to bring the parties to a settlement by finding common ground on which the parties agree.
What happens at the end of mediation?
If a resolution is reached, the parties will typically sign a binding agreement at the end of the mediation. If the terms of the agreement are particularly complex, at least the key terms should be agreed upon and put into writing at the end of the mediation. Documentation of finer details or complex aspects of the settlement can be documented at a later date.
If the parties could not reach an agreement, the mediation ends and the litigation continues towards trial.