Mediation is an alternative to courtroom litigation as a means to resolve disputes about Estates, Trusts, Wills, and Property and Personal Care decisions for incapable persons. Mediation can be conducted at any time, with the assistance of a trained, objective mediator who assists the parties in negotiating the issues they desire to resolve. Mediation can be held before or after courtroom litigation proceedings have begun.
Mediation may offer the following benefits when compared to traditional courtroom litigation: voluntary participation, informality, flexibility, speed, lower cost, choice of mediator, privacy, broad scope of remedies and solutions, and an opportunity for each party to the dispute to speak directly to the others.
The mediator strives to create an informal, comfortable setting for the parties to identify and explore the issues they would wish to negotiate a resolution to. The mediator does not judge the merits of each party’s interests, nor render any decision. Rather, they assist the parties in considering the strengths and weaknesses of each party’s case and work with them to discover mutually acceptable solutions.
If the parties are able to negotiate a resolution of the dispute, a written mediation settlement agreement is signed by all the parties, at which point the agreement becomes an enforceable contract. If no agreement is reached at the mediation, the statements and negotiations at the mediation are “without prejudice” and cannot be used in the litigation proceedings by any party without the permission of the others. Therefore, mediation provides an opportunity for a full and frank discussion among all the parties to a dispute in an informal comfortable setting without the rigid procedural structure of courtroom litigation.
Mediation can be desirable in an estate litigation situation because sometimes such disputes are not simply about property and legal documents, but may range towards past communication breakdowns, actions, and emotions of family members. Mediation can also provide flexible solutions and offer solutions for future conduct. It also offers privacy that can be of benefit where a family does not want to ‘air its dirty laundry’ through the public court system.
Sometimes the parties wish the mediator to have subject matter expertise to assist the parties in focusing on a particular estate planning or estate administration issue.
The mediator is usually able to offer flexibility in terms of booking an appointment and the length of the actual mediation proceeding. A lot can be accomplished in one day of mediation. Even if the parties are unable to resolve all issues at mediation, the process can assist the parties in narrowing the issues and identifying strengths and weaknesses in their case, and in the cases of the other disputants. Mediation has proven to be highly effective in resolving disputes by giving the parties greater control and personal involvement.
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