Many clients understand
the concept of going to court or "suing" someone, and that a lawsuit can
result in a trial before a judge or jury. However, not as many know that
(i) in probate courts, which hear all estate and trust disputes, there is no
jury, and (ii) there is a strong preference among the probate court judges that
the parties attempt to mediate a matter before a trial will be scheduled.
What is mediation? Well, in a non-legal sense any negotiation between two people can be
called a mediation. But in the context of a formal court proceeding
mediation has a specific meaning, which is a commitment by the opposing sides
to schedule a day (or series of days) to meet with a mediator and try to resolve
the case in a confidential, non-binding process.
Mediation is a flexible and less formal process that may reduce the time, legal fees and costs often associated with preparing for and going through a formal trial. In our practice, we work on making our clients' position as strong as possible before the mediation process so that there is more leverage during negotiations.
A trained mediator (often a retired probate judge or experienced probate attorney) acts as a neutral person who facilitates communication and assists parties in reaching a mutually acceptable resolution of all or part of their dispute. The mediator is not the decision-maker and does not resolve the dispute -- the parties do with the mediator's assistance. A written settlement agreement is drafted and signed at the end of the day so there is an enforceable agreement.
A mediator is often able to more fully explore the parties' underlying interests, needs and priorities. It is often conducted like shuttle diplomacy and the parties can tell the mediator "confidential' information not to be shared with the other side. Mediation may be particularly effective when family members have a dispute or when emotions are getting in the way of resolution.
The attorneys participating are also key to the process. For example, I am also a tax attorney and many probates have tax issues in the background. There can be income tax, step up (or down) in income tax basis or estate tax issues. Sometimes with structuring on the tax side during mediations, taxes can be reduced and used to bridge any settlement gap. The certainty on the tax side can be an important benefit. Creative problem solving by the attorneys is key. Most of the time it is the well-prepared, knowledgeable, strategic and credible attorney who helps the mediator settle the case.
