Mediation is always an option over litigation — as long as both parties are willing to sit at the table. When a probate dispute arises after the death of a family member, it’s often a good thing to consider mediation before heading to court.
However, probate mediation presents some unusual difficulties:
The parties need time to process their grief
When someone has just died, a party’s sense of grief can color his or her actions. Mediation isn’t likely to be as successful when the parties involved are acting primarily on their emotions. It’s always best to delay mediation until everyone has had a chance to come to terms with their loss.
There can be multiple parties involved in a dispute
Most mediation involves two people or “sides.” Inheritance disputes can involve quite a few people, depending on how many beneficiaries (or potential beneficiaries) there are for the estate. The greater the estate, the more likely that there will be a large number of people that need to come to the table to talk.
There can be different levels of financial sophistication involved
An estate dispute can involve not only multiple members of a family but different generations of that same family. It can also involve institutions, foundations and various business entities. Not everyone at the table is likely to have the same level of financial sophistication as the next — which means that the mediator has to be careful that no one is getting lost in the proceedings.
Minors may need additional protection
A minor shouldn’t really be represented by his or her parents in mediation. While parents usually have their child’s best interests at heart, a family situation can cloud their judgment. It’s better for a dispassionate party to represent a child’s interests in probate mediation.
Long-simmering feuds can derail it
Family problems that have stayed in check while the deceased was still alive can erupt during probate mediation — and completely derail proceedings. If someone is harboring intense hostility that’s personal, there’s a possibility that mediation won’t work.
Mediation is a good thing to consider when a probate dispute arises — but both participants and mediators need to be conscious of potential problems. As long as those are addressed early on, there’s a strong possibility that mediation can keep a probate issue out of court.
Source: clerksroom.com, “Probate and mediation: Is it possible to mediate a probate dispute?,” accessed April 20, 2018