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Probate/Trust Mediation

Your attorney has recommend you go to mediation to settle the dispute with your brother related to your mom or dad’s death.  Or maybe the probate Judge has ordered you to go to mediation before they will hear your case any more in Court.  Will mediation help you settle your dispute?  In this attorney’s opinion mediation will resolve most situations… but sadly not all. The reason many probate and trust disputes end up in Court is because tensions run very high after a parent’s death. Sibling rivalry issues from 65 years ago may come back to life. Issues related to the caretaking of one’s parents in their elder years may come up after death. In general, people just don’t act completely rationale when they lose a parent… AND then the other issue that clouds many people’s minds… MONEY.  Death and money combine to be a wicked force!

People end up in Court, and/or facing mediation, when they have a dispute which the two sides can not agree on a fair resolution of.  Maybe one person thinks they should get $250,000 of mom’s estate and the other person (usually their sibling) thinks that number is closer to $10,000… or zero! What’s right?  Well, most likely both sides have merit. Most likely the attorneys for each sibling have told them the good and bad to their case. Often a mediator can come in and solve the dilemna.

Let me first clear up a common misconception that the mediator comes in, says “let’s split it down the middle,” and you walk out 25 minutes later. No.  Mediation often takes all day or, in rare cases, multiple days.  In reality the mediator will generally listen to both sides present their case in a room (often a meeting room at a law firm).  Then the mediator might meet with each side alone to give their opinion of the good and bad of their case.  Yes, the mediator works hard to get a resolution but they can not force you to settle and the mediator does not make a “decision” like a Judge that is binding. A mediator trys to get both sides to see the light, agree and end the lawsuit!

A mediator is usually another attorney who practices in the area of estate and probate law (assuming your mediation is in this area of law of course). In some cases a retired Judge is used. In any event the person is an intelligent and level headed individual with knowledge of probate and trust law.  Mediators are typically paid by the hour and will bill for prep time for the mediation, travel time to the mediation, the mediation itself and any follow up work. They typically charge fees like most lawyers do; maybe $200 – $400 per hour as an estimate.

Let me clearly state a mediation is not Court.  However, you can generally get your case to mediation substantially faster than you can get to Court. Thus many people prefer mediation. Also, mediation tends to be substantially cheaper in attorney fees and I mean $UB-$TAN-TI-A-LLY!

So, let’s back up. Before the mediation your attorney will prepare a mediation brief outlining the case in their view. The other attorney will, likewise, prepare a brief showing their view. Often there is some overlap where the parties agree and then a lot of areas with no overlap.   Focusing on the issues with overlap is first to confirm the common ground. Then the mediator will delve into the dark side and try to resolve the OTHER issues!

The mediator will often put one person, and their attorney in one room, and the other in another room. The mediator will then go back and forth between the two rooms trying to narrow downthe differences and come up with common ground for a settlement.

If both parties agree the mediator might call them into the same room for a meeting to confirm the details. Then the attorneys, and the mediator, will walk over to a computer and start typing out a settlement document. The people do not leave until the settlement is reviewed and SIGNED!

In my experience mediation is a fabulous way to resolve disputes in the trust and estates arena. I encourage you to look into mediation to settle your disputes. If you need an attorney call me. If you need a probate and trust mediator call my associate, AMY RUGGLES, who has the training, patience and knowledge to help you!

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