Mediation and Probate Litigation

Probate contests are unique in a number of ways. First of all, attorneys need to know the evidence issues peculiar to probate cases. It may involve a Dead Man’s Statute issue or a hearsay exception concerning the admissibility of a decedent’s statement of memory or belief relating to the execution, revocation, identification, or terms of declarant’s will. Sometimes the testamentary capacity issue in a will contest is combined with a contractual capacity issue in the same case where the personal representative is challenging the validity of a survivorship type of account. The burdens of proof differs between the two types of capacity issues.

Probate cases are very similar to divorce cases in that the litigation leads to the consumption of limited resources. Family dynamics are almost always the source of the conflict. A mediator’s function is to facilitate a settlement. During the session a skilled mediator will to focus on the issues and try to limit the emotional communications between the parties by exploring options and resources for settlement.

The focus of the mediation session is to leave the mediation will a full settlement agreement which has been reduced to writing and signed by all parties. That means everybody must be prepared to work at the negotiations making a good faith effort to settle disputes.

The mediator is a neutral third party who is attempting to get two or more parties on a path to resolution. Since mediation is a confidential process, the mediator cannot discuss what you say in mediation to the other side. However, a frank and honest discussion of your case, both its strengths and weakness is part of that.

You as the attorney must speak to a client realistically about the end goal. Be realistic, and encourage your client to be so. This includes not only a frank discussion with the client concerning his/her case’s strengths, but also its weaknesses. Trial lawyers don’t go into court unprepared. The attorney’s preparation for a mediation session should involve the same degree of care and intensity that goes into trial preparation. There is simply a different focus – resolution of the matter. Knowing what is most important to your client and what is most important to the other side will result in constructive discussions at mediation. Try to focus on what it will take to find common ground. In mediation, you are trying to reach the other side.

In mediation, the parties and their attorneys have more leeway in arriving at a solution than does a court. Courts can only provide limited legally recognized remedies. In mediation, the parties get to be creative. Creativity is a hallmark of a good lawyer. Mediated settlements are a win-win. Both sides need to realize that “resolution” is a neutral solution in which winning or losing are immaterial.

If you wish to discuss mediation as an alternative in your probate litigation, contact the lawyers at Weiss & Tom L.L.C.

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