In the legal world, mediation is a voluntary negotiation that is facilitated by a neutral third party. Unlike arbitration, which is similar to a trial, mediation does not leave the decision making to the third party. Mediation is a common source of dispute resolution in probate cases. Probate is the process of estate planning, and there are often challenges that may require mediation.
Avoiding Probate Litigation
Mediation exists to help families avoid probate litigation. While many estates are settled smoothly or with the help of mediation, some will be hotly contested and find their way to Texas probate court. Keith Morris & Stacy Kelly, Attorneys at Law has compiled a list of factors that often trigger an estate to become a candidate for probate litigation. Risk factors for probate litigation include:
- Multiple Marriages
- Dysfunctional Family
- Nonstandard Estate Plans
- Unsuitable Agent
- Failure to update beneficiaries
Using Mediation in Probate Cases
If your family probate case is not high risk, there may still be a need for negotiation. Mediation by a third, neutral party allows families to settle probate cases outside of the court system. Mediation often solves the number one problem in probate disputes: communication. The mediation process, if used properly, opens the door for proper communication between all heirs and family members involved. Mediation also allows the probate case to stay private. Litigation in the court system opens the door to public scrutiny. The mediation process is a private collaboration of family members, not a full trial and public display. Other positives of using mediation include:
- Mediation can move quickly, expediting the probate process
- Useful in large, complex estates
- Less formal than court proceedings
- More affordable than litigation
Mediation Process in Probate Cases
The mediation process in probate cases often follows these steps:
- The mediator opens with a statement and all participants introduce themselves.
- Each party is invited to describe the dispute in his or her own words, and no one is allowed to interrupt the speaker.
- Mediator prompts discussion about opening statements, determines primary issues to be addressed.
- Each party meets privately with the mediator to discuss the strengths and weaknesses of their position.
- Join negotiations by the mediator with both parties present.
- The mediator closes the meeting. If an agreement is reached, the main provisions are put into writing.
If no agreement is reached during mediation in probate cases, the mediator will attempt to advise each party of their options. Sometimes the group will meet again at a later date, or they may choose probate litigation as the next option.
If you and your family are interested in probate mediation, contact Keith Morris today. A Houston probate litigation lawyer can help advise your family with a plan for mediation, knowing what to say and what to expect. Mediation can be a wonderful tool for solving probate disputes out of the court system.