Principles of Probate and Trust Mediation

Principles of Probate and Trust Mediation by Kevin Staker

The death of a loved one triggers strong feelings in family members.  Issues can arise in the life of an elder in their waning years and then after their death that can be difficult for family and friends.  Those issues can flare into conflict.  Litigation is very expensive, and so mediation of such disputes has become more and more popular.

In probate or trust mediation, the parties work with a neutral mediator to try to resolve their disputes without litigation and an eventual trial. Parties may go to mediation before or after filing a lawsuit. The parties and their attorneys meet with the mediator in a private, confidential setting.
The mediator:
  • works with the attorneys for the parties to design a mediation process acceptable to counsel (a good mediator will not impose the procedures);
  • listens to each party’s concerns;
  • assists the parties in evaluating the strengths and weaknesses of their case;
  • helps the parties understand each other and communicate with each other (if it would be helpful in their case);
  • provide “reality checks” about the possible outcomes in court and in settlement; and
  • assists the parties in creating a settlement agreement that is acceptable to everyone.

The mediator does not decide the matter and resolve the dispute — the parties do.  A mediator may more fully reveal to each party the other party’s interests and needs.

Mediation may particularly assist  when the emotions of family members get in the way of resolution.  The mediator can and must listen to the parties and help them more constructively communicate with each other.

Advantages of Mediation

  • Less expensive and resolved more quickly than litigation
  • Non-legal issues can be resolved in flexible ways outside the structure of a what a court order can include
  • The parties design their own resolution of the issues and so are more likely to want the agreement to succeed.
  • Family relationships have a better chance of being mended and then preserved.
  • The parties may need only an “emotional” resolution and then the legal resolution will easily follow.  Apologies can be offered and accepted, or a party may only need to have another listen to and at least acknowledge their feelings.
  • Private, no “airing of dirty laundry” of the family in public.
  • Less stressful, parties can privately share their concerns with the mediator.

Disadvantages of Mediation

  • Cost may be for naught.  Mediation is not compulsory; any party can decide to not settle the matter and go forward with the ligation.
  • No public trial: Parties do not get their “day in court” or a decision by a judge or jury.

In most cases, the advantages far outweigh the disadvantages.  Hence, probate and trust mediations resolve far more cases than go to trial.